Cognitive Encapsulation: Thinking Inside the Box

The American Psychological Association's Guide to Graduate Programs in Forensic and Legal Psychology 2010-2011 lists nine Ph.D. programs and five Psy.D. programs. In contrast, in an alphabetical listing of APA-approved doctoral programs in clinical psychology, one finds 31 programs listed between Adelphi and Azusa Pacific. In light of these numbers, it should come as no surprise that the vast majority of mental health practitioners, who currently provide forensic mental health services, expended several years and many dollars acquiring education, training, and experience as health service providers. Leon Festinger, whose primary contribution to the field of psychology was the concept of cognitive dissonance, could easily explain why it is difficult for treatment providers who have become forensic mental health practitioners to view their lengthy and expensive graduate school years and internship years as cognitively encapsulating.

There can be little doubt, however, that education and training in the provision of health services often channels practitioners' thought processes in ways that are counter-productive when the task to be tackled involves formulating opinions that, when shared with triers of fact, will assist them in their deliberations. Treatment providers must recognize that their specialized training directs their thinking in ways that were (and remain) useful when the objective is to relieve psychologically based distress, but may produce a loud, grinding noise when they attempt to switch gears, in order to offer forensic mental health services.

Training for Forensic Psychology

In 2001, forensic psychology was officially recognized as a psychological specialty by the Commission for the Recognition of Specialties in Professional Psychology (CRSPP), a commission that functions under the aegis of the American Psychological Association. Recognition of forensic psychology as a specialty places upon psychologists an obligation to secure education, training and supervised experience in this specialty if they wish to offer forensic psychological services.

With specific regard to the performance of child custody evaluations, the American Psychological Association's Guidelines for Child Custody Evaluations in Family Law Proceedings reminds psychologists that “general competence in the clinical assessment of children, adults, and families is necessary but is insufficient in and of itself” (p. 864). The Association of Family and Conciliation Courts' Model Standards of Practice for Child Custody Evaluation reminds evaluators that they must “gain specialized knowledge and training in a wide range of topics specifically related to child custody work” (p. 72).

In 2009, J. N. Bow and I, using data from an anonymously taken survey of evaluators, reported that 31% of the respondents indicated that they had attended no custody-related workshops, and 12% stated that they had read no applicable articles or books. [Bow, J. N. & Martindale, D. A. (2009). Developing and Managing a Child Custody Practice. J of Forensic Psychology Practice (JFPP), 9:2, 127-137].

When mental health professionals train to provide health services, they learn interview methods; they learn to focus on issues pertaining to treatment goals; they develop assessment skills, and they become strongly committed to protecting the privacy of those with whom they interact. Much of what they learn must be unlearned if they are to function effectively as providers of forensic mental health services. They must conduct interviews differently, focus on different issues, reject assessment tools that were previously valued, and respect the discovery process.

Interview Methods

In most forms of psychotherapy, successful outcomes are dependent on the listening skills of the therapist, among other things. Therapists learn that effective listening often requires resisting the impulse to interrupt for the purpose of obtaining clarification or additional information. A cognitive box has been created. Therapists often learn, in their training and through their practice experiences, that permitting patients to discuss what they believe to be important facilitates the development of the therapeutic alliance.

In contrast, forensic practitioners conducting child custody evaluations must, in their interviews, gather information that will shed light on the disputed issues enumerated in a court order and must gather information that bears upon the parenting strengths and deficiencies of the litigating parties. Performing this task requires an appreciation of the need to pose follow-up questions, even if, in order to do so, an evaluator must interrupt the interviewee.

The following examples of litigant statements that required, but did not receive, exploration are derived from case files: 1) In responding to a question about his parenting style, custody litigant James Doe stated: “I present Jimmy with choices.” Jimmy is 26 months old. The evaluator failed to ask what types of choices Mr. Doe presents to his 26-month-old son. 2) When asked to describe her three children, whose ages range from 3 to 14, a custody litigant replied: “They're real firecrackers.” The evaluator wrote down the litigant's response, but did not inquire further. 3) A custody litigant asserted that when she was pregnant, the child's father “did everything to make me upset.” The evaluator failed to seek examples. 4) The same evaluator failed to seek examples when the father asserted that the child's mother “does not analyze things correctly” and that she “is not capable of making decisions.”

Readers should not infer that failure to ask follow-up questions in a treatment context is inconsequential. A psychologist's intake notes reflect that the patient reports that he “cries all the time.” There is no indication in the record that the psychologist ever attempted to ascertain how often the patient cries or what, from the patient's perspective, the precipitants are. When, in a forensic context, the patient records were disclosed and the psychologist was deposed, he acknowledged never having inquired and further acknowledged that he had “no idea” how often his patient cries or what events (including mental/emotional events) trigger crying. In the terminology of treatment providers, crying “all the time” was the patient's presenting problem, and more information should have been obtained.

Treatment providers wish to understand the perceptions of their patients; however, some treatment providers seem unconcerned with the degree to which their patients' perceptions correspond with reality. Readers of reports prepared by treating practitioners occasionally encounter phrases that suggest a belief in individualized realities. References in reports to “his reality” or “her reality” in fact ignore reality. We are all entitled to our own opinions; we are not entitled to our own realities, and the degree to which perceptions are in accord with reality matters. In forensic contexts, the accuracy of litigants' reported perceptions is of critical importance. Astute readers will have noted the words “reported perceptions.” In forensic contexts, evaluators must remind themselves that the self-reports of litigants are not always truthful. In performing custody evaluations, many evaluators employ assessment techniques that enable them to ascertain the degree to which each parent's reported perceptions of their children's characteristics and behaviors conform to the descriptions provided by collateral sources such as teachers.

In response to discovery demands, an evaluator has furnished her contemporaneously taken session notes. They contain many pages of information regarding each parent's views of their marriage, but only two paragraphs (one from each parent) concerning the parents' views of their own and the other parent's strengths and deficiencies as parents. When asked about this disparity, the evaluator explains: “I like to let people tell their stories in the way that they're most comfortable with.” Custody evaluators need to know why the parents whom they are evaluating are litigating. Questions likely to yield informative responses include: “What is the parenting plan that you believe to be best for your child?” “How is it different from the plan being proposed by the other parent?” “What are your reasons for believing that your plan would be more likely to meet the needs of your child than the plan proposed by the other parent?” Information bearing upon these issues is not likely to be spontaneously offered when “people tell their stories in the way that they're most comfortable with.”

There is no basis for believing that permitting custody litigants to speak for extended periods of time about their marital relationship will enable evaluators to secure the information needed to formulate opinions responsibly about parenting plans that are most likely to be in children's best interests. For this reason, at times, evaluators must function like border collies, nipping and barking, and keeping the litigants going where they need to go.

Following the Lead of Hippocrates

Treatment providers treat; evaluators evaluate. The Hippocratic oath is not applicable in the context of forensic evaluations. No matter how strongly evaluators may feel about the importance of the work that they do, they will acknowledge that all family members benefit when divorcing parents are able to agree upon parenting plans without judicial intervention. The evaluative process is inherently harmful. Evaluations are undertaken in the belief that judicial decisions regarding parenting plans are more likely to meet the long term best interests of children when judges receive advisory input from mental health professionals who have conducted thorough evaluations. Put simply: It is believed that the potential benefit of informed advisory input outweighs the harm that is caused by the evaluative process. Standard 3.04 of the psychologists' ethics code obligates us to “minimize harm where it is foreseeable and unavoidable.”

Under some circumstances, psychologists can face disciplinary action when they treat an individual and, simultaneously, perform a forensic evaluative function. An example can be found in the Judicial Decision in Matter of the Suspension or Revocation of the License of Marsha J. Kleinman, Psy.D., ' to Practice Psychology in the State of New Jersey (Initial Decision, 7/13/12). An administrative law judge (ALJ) wrote: “[R]espondent is charged with performing the court assignment as both a treating psychologist and a forensic psychologist in violation of the standards of her profession” (page 41). The judge called attention to the fact that the standard of care does not permit a treating psychologist to serve as a forensic psychologist at the same time, because the goals of these roles conflict; a treating psychologist seeks the well-being of the client, and a forensic psychologist is responsible for assisting the trier of fact in a forensic investigation. The ALJ concluded that the psychologist had “committed gross and repeated malpractice by performing as both a treating psychologist and a forensic psychologist at the same time with the same patient” (page 85).

Though the 96-page decision in the Kleinman matter is instructive, Kleinman viewed herself as a treatment provider whose reports to the court were incidental to her treatment. The role boundary problem being addressed here is one in which custody evaluators lose sight of the fact that they cannot function as helpers for those whom the court has directed them to evaluate. Evaluators who, as they contemplate a family being evaluated, ponder the ways in which they can help the parents, help the child, or improve the family dynamics, are displaying cognitive encapsulation. They are thinking like helpers, despite the fact that they are contractually obligated to function as something quite different ' independent examiners. One cannot evaluate individuals while simultaneously offering advice to them or endeavoring in some other manner to assist them. When, for example, forensic psychologists functioning as custody evaluators attempt to improve the parenting skills of those whom they are evaluating, the evaluators indirectly become evaluators of the success or failure of their own interventions.

When mental health professionals accept court assignments to evaluate families in which custody of or access to children is being litigated, the practitioners accept a task that is investigative in nature. The nature of the role accepted by evaluators obligates them to assess and describe parenting characteristics that are likely either to facilitate or to hamper each parent's efforts to provide effective parenting to the children who are the focus of litigation. It is not the responsibility of evaluators to rehabilitate damaged relationships. Where deficiencies are noted in the manner in which a parent interacts with a child, the evaluator's obligation is to describe the way(s) in which the interactions are problematic and, if possible, to offer professional opinions concerning the likely long-term consequences for the child of residing with a parent who deals with the child in the specifically described ways. Efforts to alter problematic parent-child interaction patterns are inconsistent with the evaluative function.

In the Preamble to the Association of Family and Conciliation Courts' Model Standards for Child Custody Evaluation, evaluators are admonished to “perform their professional activities with a recognition of the investigative nature of the task. '” We cannot objectively investigate that which we are simultaneously endeavoring to alter.

Consider that which follows, taken from the transcript of an evaluator's deposition. In the midst of a lengthy evaluation, an evaluator has taken steps intended to transform children who interact poorly with their father into children who will, in the words of the evaluator, “behave, be lovely children ' [and be] respectful and courteous” when with their father. The evaluator describes her intervention as an “effort in a therapeutic-type basis ' ” and adds: “ I'm trying to improve the circumstances between the children and their father. ' ” The evaluator's effort to improve the interpersonal dynamics between the children and their father compromises the evaluator's ability to perform the task that was accepted.

Coming Soon

This is the first part of a two-part article. At least four issues will be discussed in the second part: 1) The ways in which the objectives of assessments conducted for treatment purposes differ from the objectives of assessments conducted in child custody disputes, and the implications of these differences for test selection; 2) the ways in which perspectives held by treatment providers
that relate to matters of privacy must be modified for forensic evaluations; 3) the importance of understanding the differences between the interpersonal dynamics with which treatment providers have become accustomed (when the patient has come to them voluntarily) and those that occur when litigants come to evaluators in response to court orders; and, 4) the requirement that forensic practitioners explain and defend their methods, decisions, and opinions. Practitioners are not required to do this in a treatment context, where the only person who must be satisfied with the practitioner's work is the patient.

David A. Martindale, Ph.D, A.B.B.P., a member of this newsletter's Board of Editors, is board certified in forensic psychology by the American Board of Professional Psychology. He served as the Reporter for the Association of Family and Conciliation Courts' Model Standards for Child Custody Evaluation and is the co-author, with Jon Gould, of The Art and Science of Child Custody Evaluations. He can be reached at [email protected].

The repetitive, successful use of a particular method for tackling tasks significantly increases the likelihood that the method will be employed in approaching the next task. It is known, for example, that certain types of puzzles that stump most adults are more easily solved by children. To those who value education, a causal analysis of this dynamic may create some discomfort: Education, especially in specialized areas, channels our thought processes. We learn to eliminate from consideration problem-solving techniques that, in the past, have not borne fruit. In other words, our problem-solving successes are attributable, in large part, to the fact that education and experience teach us how to differentiate the important from the unimportant. We learn to think within the confines of a cognitive box. As a result, strategies that have produced success in the past are likely to lead to failure when that which, in the past, was unimportant, turns out, in today's context, to be quite important.

Escaping the Cognitive Box

The cognitive box from which most forensic psychologists must extricate themselves, unless they have already done so, is the one that has been created by education, training, and experience in clinical psychology. Depending upon what sources we utilize when we search for definitions, we will encounter somewhat different lists of the key elements of clinical psychology. Dictionary.com defines clinical psychology, concisely, as “the branch of psychology dealing with the diagnosis and treatment of personality and behavioral disorders.” Those who wrote the entry that is found at Wikipedia were somewhat more verbose, but they emphasized “the study and application of psychology for the purpose of understanding, preventing, and relieving psychologically based distress or dysfunction and to promote subjective well-being and personal development.”

The American Psychological Association's Guide to Graduate Programs in Forensic and Legal Psychology 2010-2011 lists nine Ph.D. programs and five Psy.D. programs. In contrast, in an alphabetical listing of APA-approved doctoral programs in clinical psychology, one finds 31 programs listed between Adelphi and Azusa Pacific. In light of these numbers, it should come as no surprise that the vast majority of mental health practitioners, who currently provide forensic mental health services, expended several years and many dollars acquiring education, training, and experience as health service providers. Leon Festinger, whose primary contribution to the field of psychology was the concept of cognitive dissonance, could easily explain why it is difficult for treatment providers who have become forensic mental health practitioners to view their lengthy and expensive graduate school years and internship years as cognitively encapsulating.

There can be little doubt, however, that education and training in the provision of health services often channels practitioners' thought processes in ways that are counter-productive when the task to be tackled involves formulating opinions that, when shared with triers of fact, will assist them in their deliberations. Treatment providers must recognize that their specialized training directs their thinking in ways that were (and remain) useful when the objective is to relieve psychologically based distress, but may produce a loud, grinding noise when they attempt to switch gears, in order to offer forensic mental health services.

Training for Forensic Psychology

In 2001, forensic psychology was officially recognized as a psychological specialty by the Commission for the Recognition of Specialties in Professional Psychology (CRSPP), a commission that functions under the aegis of the American Psychological Association. Recognition of forensic psychology as a specialty places upon psychologists an obligation to secure education, training and supervised experience in this specialty if they wish to offer forensic psychological services.

With specific regard to the performance of child custody evaluations, the American Psychological Association's Guidelines for Child Custody Evaluations in Family Law Proceedings reminds psychologists that “general competence in the clinical assessment of children, adults, and families is necessary but is insufficient in and of itself” (p. 864). The Association of Family and Conciliation Courts' Model Standards of Practice for Child Custody Evaluation reminds evaluators that they must “gain specialized knowledge and training in a wide range of topics specifically related to child custody work” (p. 72).

In 2009, J. N. Bow and I, using data from an anonymously taken survey of evaluators, reported that 31% of the respondents indicated that they had attended no custody-related workshops, and 12% stated that they had read no applicable articles or books. [Bow, J. N. & Martindale, D. A. (2009). Developing and Managing a Child Custody Practice. J of Forensic Psychology Practice (JFPP), 9:2, 127-137].

When mental health professionals train to provide health services, they learn interview methods; they learn to focus on issues pertaining to treatment goals; they develop assessment skills, and they become strongly committed to protecting the privacy of those with whom they interact. Much of what they learn must be unlearned if they are to function effectively as providers of forensic mental health services. They must conduct interviews differently, focus on different issues, reject assessment tools that were previously valued, and respect the discovery process.

Interview Methods

In most forms of psychotherapy, successful outcomes are dependent on the listening skills of the therapist, among other things. Therapists learn that effective listening often requires resisting the impulse to interrupt for the purpose of obtaining clarification or additional information. A cognitive box has been created. Therapists often learn, in their training and through their practice experiences, that permitting patients to discuss what they believe to be important facilitates the development of the therapeutic alliance.

In contrast, forensic practitioners conducting child custody evaluations must, in their interviews, gather information that will shed light on the disputed issues enumerated in a court order and must gather information that bears upon the parenting strengths and deficiencies of the litigating parties. Performing this task requires an appreciation of the need to pose follow-up questions, even if, in order to do so, an evaluator must interrupt the interviewee.

The following examples of litigant statements that required, but did not receive, exploration are derived from case files: 1) In responding to a question about his parenting style, custody litigant James Doe stated: “I present Jimmy with choices.” Jimmy is 26 months old. The evaluator failed to ask what types of choices Mr. Doe presents to his 26-month-old son. 2) When asked to describe her three children, whose ages range from 3 to 14, a custody litigant replied: “They're real firecrackers.” The evaluator wrote down the litigant's response, but did not inquire further. 3) A custody litigant asserted that when she was pregnant, the child's father “did everything to make me upset.” The evaluator failed to seek examples. 4) The same evaluator failed to seek examples when the father asserted that the child's mother “does not analyze things correctly” and that she “is not capable of making decisions.”

Readers should not infer that failure to ask follow-up questions in a treatment context is inconsequential. A psychologist's intake notes reflect that the patient reports that he “cries all the time.” There is no indication in the record that the psychologist ever attempted to ascertain how often the patient cries or what, from the patient's perspective, the precipitants are. When, in a forensic context, the patient records were disclosed and the psychologist was deposed, he acknowledged never having inquired and further acknowledged that he had “no idea” how often his patient cries or what events (including mental/emotional events) trigger crying. In the terminology of treatment providers, crying “all the time” was the patient's presenting problem, and more information should have been obtained.

Treatment providers wish to understand the perceptions of their patients; however, some treatment providers seem unconcerned with the degree to which their patients' perceptions correspond with reality. Readers of reports prepared by treating practitioners occasionally encounter phrases that suggest a belief in individualized realities. References in reports to “his reality” or “her reality” in fact ignore reality. We are all entitled to our own opinions; we are not entitled to our own realities, and the degree to which perceptions are in accord with reality matters. In forensic contexts, the accuracy of litigants' reported perceptions is of critical importance. Astute readers will have noted the words “reported perceptions.” In forensic contexts, evaluators must remind themselves that the self-reports of litigants are not always truthful. In performing custody evaluations, many evaluators employ assessment techniques that enable them to ascertain the degree to which each parent's reported perceptions of their children's characteristics and behaviors conform to the descriptions provided by collateral sources such as teachers.

In response to discovery demands, an evaluator has furnished her contemporaneously taken session notes. They contain many pages of information regarding each parent's views of their marriage, but only two paragraphs (one from each parent) concerning the parents' views of their own and the other parent's strengths and deficiencies as parents. When asked about this disparity, the evaluator explains: “I like to let people tell their stories in the way that they're most comfortable with.” Custody evaluators need to know why the parents whom they are evaluating are litigating. Questions likely to yield informative responses include: “What is the parenting plan that you believe to be best for your child?” “How is it different from the plan being proposed by the other parent?” “What are your reasons for believing that your plan would be more likely to meet the needs of your child than the plan proposed by the other parent?” Information bearing upon these issues is not likely to be spontaneously offered when “people tell their stories in the way that they're most comfortable with.”

There is no basis for believing that permitting custody litigants to speak for extended periods of time about their marital relationship will enable evaluators to secure the information needed to formulate opinions responsibly about parenting plans that are most likely to be in children's best interests. For this reason, at times, evaluators must function like border collies, nipping and barking, and keeping the litigants going where they need to go.

Following the Lead of Hippocrates

Treatment providers treat; evaluators evaluate. The Hippocratic oath is not applicable in the context of forensic evaluations. No matter how strongly evaluators may feel about the importance of the work that they do, they will acknowledge that all family members benefit when divorcing parents are able to agree upon parenting plans without judicial intervention. The evaluative process is inherently harmful. Evaluations are undertaken in the belief that judicial decisions regarding parenting plans are more likely to meet the long term best interests of children when judges receive advisory input from mental health professionals who have conducted thorough evaluations. Put simply: It is believed that the potential benefit of informed advisory input outweighs the harm that is caused by the evaluative process. Standard 3.04 of the psychologists' ethics code obligates us to “minimize harm where it is foreseeable and unavoidable.”

Under some circumstances, psychologists can face disciplinary action when they treat an individual and, simultaneously, perform a forensic evaluative function. An example can be found in the Judicial Decision in Matter of the Suspension or Revocation of the License of Marsha J. Kleinman, Psy.D., ' to Practice Psychology in the State of New Jersey (Initial Decision, 7/13/12). An administrative law judge (ALJ) wrote: “[R]espondent is charged with performing the court assignment as both a treating psychologist and a forensic psychologist in violation of the standards of her profession” (page 41). The judge called attention to the fact that the standard of care does not permit a treating psychologist to serve as a forensic psychologist at the same time, because the goals of these roles conflict; a treating psychologist seeks the well-being of the client, and a forensic psychologist is responsible for assisting the trier of fact in a forensic investigation. The ALJ concluded that the psychologist had “committed gross and repeated malpractice by performing as both a treating psychologist and a forensic psychologist at the same time with the same patient” (page 85).

Though the 96-page decision in the Kleinman matter is instructive, Kleinman viewed herself as a treatment provider whose reports to the court were incidental to her treatment. The role boundary problem being addressed here is one in which custody evaluators lose sight of the fact that they cannot function as helpers for those whom the court has directed them to evaluate. Evaluators who, as they contemplate a family being evaluated, ponder the ways in which they can help the parents, help the child, or improve the family dynamics, are displaying cognitive encapsulation. They are thinking like helpers, despite the fact that they are contractually obligated to function as something quite different ' independent examiners. One cannot evaluate individuals while simultaneously offering advice to them or endeavoring in some other manner to assist them. When, for example, forensic psychologists functioning as custody evaluators attempt to improve the parenting skills of those whom they are evaluating, the evaluators indirectly become evaluators of the success or failure of their own interventions.

When mental health professionals accept court assignments to evaluate families in which custody of or access to children is being litigated, the practitioners accept a task that is investigative in nature. The nature of the role accepted by evaluators obligates them to assess and describe parenting characteristics that are likely either to facilitate or to hamper each parent's efforts to provide effective parenting to the children who are the focus of litigation. It is not the responsibility of evaluators to rehabilitate damaged relationships. Where deficiencies are noted in the manner in which a parent interacts with a child, the evaluator's obligation is to describe the way(s) in which the interactions are problematic and, if possible, to offer professional opinions concerning the likely long-term consequences for the child of residing with a parent who deals with the child in the specifically described ways. Efforts to alter problematic parent-child interaction patterns are inconsistent with the evaluative function.

In the Preamble to the Association of Family and Conciliation Courts' Model Standards for Child Custody Evaluation, evaluators are admonished to “perform their professional activities with a recognition of the investigative nature of the task. '” We cannot objectively investigate that which we are simultaneously endeavoring to alter.

Consider that which follows, taken from the transcript of an evaluator's deposition. In the midst of a lengthy evaluation, an evaluator has taken steps intended to transform children who interact poorly with their father into children who will, in the words of the evaluator, “behave, be lovely children ' [and be] respectful and courteous” when with their father. The evaluator describes her intervention as an “effort in a therapeutic-type basis ' ” and adds: “ I'm trying to improve the circumstances between the children and their father. ' ” The evaluator's effort to improve the interpersonal dynamics between the children and their father compromises the evaluator's ability to perform the task that was accepted.

Coming Soon

This is the first part of a two-part article. At least four issues will be discussed in the second part: 1) The ways in which the objectives of assessments conducted for treatment purposes differ from the objectives of assessments conducted in child custody disputes, and the implications of these differences for test selection; 2) the ways in which perspectives held by treatment providers
that relate to matters of privacy must be modified for forensic evaluations; 3) the importance of understanding the differences between the interpersonal dynamics with which treatment providers have become accustomed (when the patient has come to them voluntarily) and those that occur when litigants come to evaluators in response to court orders; and, 4) the requirement that forensic practitioners explain and defend their methods, decisions, and opinions. Practitioners are not required to do this in a treatment context, where the only person who must be satisfied with the practitioner's work is the patient.

David A. Martindale, Ph.D, A.B.B.P., a member of this newsletter's Board of Editors, is board certified in forensic psychology by the American Board of Professional Psychology. He served as the Reporter for the Association of Family and Conciliation Courts' Model Standards for Child Custody Evaluation and is the co-author, with Jon Gould, of The Art and Science of Child Custody Evaluations. He can be reached at [email protected].