New Guidelines for Forensic Psychologists

Interacting with people at the intersection of law and psychology means that the opinions offered by forensic psychologists (FPs) can have a profound impact on the trajectory of those people's lives given the rights and liberties that often hang in the balance. This section of the APA's new guidelines appropriately emphasizes the critical importance of practicing with integrity, impartiality, fairness and careful attention to the avoidance of conflicts of interests.

Guideline 2: Competence

As forensic work becomes more and more attractive to practitioners due to the economic and logistical challenges presented by managed care in the treatment setting, the risk of less-than-competent professionals entering this unique field increases. This section of the guidelines focuses on determining if one has the knowledge base and training to offer forensic services, and on the importance of gaining and maintaining such competence. There is also an emphasis on accurately representing one's skills and training, an important dictate, given the number of “vanity credentials” available on the market that often mean little with respect to competence. This section also outlines the importance of FPs having sufficient knowledge of the legal system and of providing only opinions that are grounded both in a reliable methodology and in the scientific literature of the discipline. Given the literature on how subjective values, beliefs and opinion can compromise impartiality and objectivity, practitioners are also reminded to closely monitor such biases and even decline to take a case if they appear to be a potential source of distortion.

Guideline 3: Diligence

In this section the APA guidelines focus on the critical importance of seeking explicit contractual agreement about what the scope of the engagement will be (i.e., what the psycho-legal questions are to be addressed) and about such matters as case finances. FPs are reminded that they should strive to manage their workloads so that their services can be provided in a prompt, thorough, and timely manner.

Guideline 4: Relationships

In this major section, the guidelines try to clarify complex aspects of the practitioner-litigant-attorney relationship. These include issues around privacy and privilege that come into play, and the importance of explicitly clarifying the nature of the role to be played (e.g., the distinctions between the roles of forensic examiner, trial consultant, testimonial expert, and treatment provider). Practitioners are reminded of the conflicts and perils of having dual relationships with those they evaluate or treat in the forensic setting. Finally, FPs are reminded that providing both forensic evaluation and treatment for a litigant creates significant risk for impaired objectivity; this situation should be avoided, if possible.

Guideline 5: Fees

The guidelines address the issues that can be considered as a practitioner decides what to charge for a particular forensic request. There is an emphasis on being clear with the identified client (whether attorney or litigant) about the probable cost of services whenever feasible, and on the avoidance of agreement to accept contingency fees. Practitioners should strive to offer a portion of their time for services where, due to financial disadvantage, there can be little or no compensation.

Guideline 6: Informed Consent, Notification, and Assent

This section addresses the duty to make sure that recipients of forensic services are aware of the parameters and nature of the assessment, treatment, or consultation process. Service recipients should have the process clarified as early as possible. There should be early and full disclosure of information that might impact on whether the particular FP will be retained, including information about the fee structure, aspects of the FP's personal or professional activities that may be relevant, limitations in the practitioner's skills or knowledge regarding the forensic assignment, and the scientific basis or limitations of the methods likely to be used.

If an examinee has not been ordered to have a forensic assessment, the FP should be sure to attain his or her informed consent. If there is a court order, however, the assessment can be conducted despite the objections of the party. FPs are warned of the perils for the litigant of providing services when the litigant is not represented by counsel. They are further reminded to make clear to collateral sources just how information obtained from them will be used, and about any right any such collateral source has to decline to participate.

Guideline 7: Conflicts in Practice

The APA guidelines recognize that FPs working in a practice world that mixes legal and clinical issues are often faced with responsibilities and demands that conflict with one another, presenting difficult ethical challenges. For example, a court order might specify that an FP render an opinion about a matter that falls outside the psychology discipline. Practitioners are reminded of the importance of adhering to the ethical principles of the psychology discipline promulgated by the APA and are encouraged to make this commitment clear to those accessing their services. If service requests are in line with applicable law but appear to demand ethically questionable behavior on the FP's part, and if attempts to resolve the conflict fail, FPs may choose to adhere to the law, but only to an extent that does not violate a person's rights.

Guideline 8: Privacy, Confidentiality and Privilege

The new guidelines remind practitioners that caution in safeguarding the confidentiality of information related to a retaining party or client is a critically important aspect of forensic practice. Responding to properly served and noticed subpoenas is a basic aspect of forensic practice, and complying with such requests for information is encouraged. FPs should seek legal advice when they have doubt about the appropriateness of certain requests. FPs are also encouraged to make the contents of their file readily attainable by the retaining party.

Guideline 9: Methods and Procedures

FPs are to strive to use methodologies that examine the psycho-legal question from all reasonable perspectives and that differentially test rival hypotheses in the matter at hand. The importance of using multiple sources of information during the forensic process is emphasized, and when data cannot be corroborated, this fact is to be made clear to the consumer of the service. FPs are also reminded in this section of the risks of rendering opinions about people who have not been directly evaluated (as is the case in situations where record review is the only option). Opinions about the psychological characteristics of individuals should only be offered when the available data is sufficient for the particular opinion. When direct, personal evaluation of a subject in a legal matter is not possible or warranted, practitioners should make clear the limitations in their data base and the related implications for the reliability of any opinions offered.

Guideline 10: Assessment

FPs are to focus forensic assessments on gathering information relevant to the psycho-legal question with which they are presented, with a focus on assisting the trier of fact. Assessment procedures are utilized in line with purposes appropriate to the particular method and in light of any research or evidence regarding their usefulness. In short, only reliable and valid methods should be chosen, and if a method is used for which validity data related to forensic applications is unavailable, the strengths and limitations of such an application should be made explicit.' FPs are to consider factors related to culture, situational demands and language when interpreting assessment results. Documenting all data that the FP is considering with sufficient detail to allow adequate discovery and reasonable judicial scrutiny is encouraged.”

Guideline 11: Professional And Other Public Communications

FPs are reminded of the critical importance of communicating, whether in reports, testimony, or public statements, in a manner marked by fairness, accuracy, and an avoidance of deception. Relevant evidence is not to be withheld nor distorted, and FPs should not participate in misrepresentation of their evidence or in partisan attempts to subvert presentation of information contrary to a litigant's position in a case. In reports, FPs should clearly distinguish between observations, inferences and conclusions, and should openly disclose all sources of information obtained during the forensic process. In reports and testimony, FPs should strive to offer a complete statement of all relevant conclusions arrived at, along with the bases and reasoning underlying the opinions proffered. Discussion of background information that does not bear directly on the psycho-legal question should be limited or avoided entirely.

Conclusion

The Specialty Guidelines for Forensic Psychology promulgated by the APA, while aspirational rather than controlling, represent a welcome evolution from prior guidelines, as they clarify important principles relevant to this challenging area of practice. Judges and lawyers will find in the details of the Guidelines a resource for determining if a particular forensic service was provided with adequate attention to forensic norms and parameters meant to ensure ethical practice and reliable work products.

Jeffrey P. Wittmann, Ph.D., a member of this newsletter's Board of Editors, is a licensed psychologist and trial consultant at the Center for Forensic Psychology in Albany. He conducts peer work-product reviews and is the author of Custody Chaos, Personal Peace (Penguin, 2001). Reach him at [email protected].'

In January of this year, the American Psychological Association (APA) published a revised and updated set of guidelines for the practice of forensic psychology (APA, (2013). Specialty Guidelines for Forensic Psychology, American Psychologist, 68(1), 7-19.). This document represents a substantial and long-awaited improvement over the prior set of guidelines, especially with respect to its breadth and clarity.

Because some of the new guidelines have particular relevance to child custody assessment, family law practitioners should make themselves aware of them. But first, two things should be noted: For one, the guidelines are not mandatory “rules,” but aspirational guidelines meant to inform and elevate practice. As such, with the exception of those sections closely tied to the APA ethical principles, an individual practitioner can choose to deviate from their content. Second, the guidelines are addressed to the entire spectrum of professional activities that can be defined as “forensic,” including custody assessments, criminal and tort-related evaluations, research activity, consultation, and mediation, among others.

Guideline 1: Responsibilities

Interacting with people at the intersection of law and psychology means that the opinions offered by forensic psychologists (FPs) can have a profound impact on the trajectory of those people's lives given the rights and liberties that often hang in the balance. This section of the APA's new guidelines appropriately emphasizes the critical importance of practicing with integrity, impartiality, fairness and careful attention to the avoidance of conflicts of interests.

Guideline 2: Competence

As forensic work becomes more and more attractive to practitioners due to the economic and logistical challenges presented by managed care in the treatment setting, the risk of less-than-competent professionals entering this unique field increases. This section of the guidelines focuses on determining if one has the knowledge base and training to offer forensic services, and on the importance of gaining and maintaining such competence. There is also an emphasis on accurately representing one's skills and training, an important dictate, given the number of “vanity credentials” available on the market that often mean little with respect to competence. This section also outlines the importance of FPs having sufficient knowledge of the legal system and of providing only opinions that are grounded both in a reliable methodology and in the scientific literature of the discipline. Given the literature on how subjective values, beliefs and opinion can compromise impartiality and objectivity, practitioners are also reminded to closely monitor such biases and even decline to take a case if they appear to be a potential source of distortion.

Guideline 3: Diligence

In this section the APA guidelines focus on the critical importance of seeking explicit contractual agreement about what the scope of the engagement will be (i.e., what the psycho-legal questions are to be addressed) and about such matters as case finances. FPs are reminded that they should strive to manage their workloads so that their services can be provided in a prompt, thorough, and timely manner.

Guideline 4: Relationships

In this major section, the guidelines try to clarify complex aspects of the practitioner-litigant-attorney relationship. These include issues around privacy and privilege that come into play, and the importance of explicitly clarifying the nature of the role to be played (e.g., the distinctions between the roles of forensic examiner, trial consultant, testimonial expert, and treatment provider). Practitioners are reminded of the conflicts and perils of having dual relationships with those they evaluate or treat in the forensic setting. Finally, FPs are reminded that providing both forensic evaluation and treatment for a litigant creates significant risk for impaired objectivity; this situation should be avoided, if possible.

Guideline 5: Fees

The guidelines address the issues that can be considered as a practitioner decides what to charge for a particular forensic request. There is an emphasis on being clear with the identified client (whether attorney or litigant) about the probable cost of services whenever feasible, and on the avoidance of agreement to accept contingency fees. Practitioners should strive to offer a portion of their time for services where, due to financial disadvantage, there can be little or no compensation.

Guideline 6: Informed Consent, Notification, and Assent

This section addresses the duty to make sure that recipients of forensic services are aware of the parameters and nature of the assessment, treatment, or consultation process. Service recipients should have the process clarified as early as possible. There should be early and full disclosure of information that might impact on whether the particular FP will be retained, including information about the fee structure, aspects of the FP's personal or professional activities that may be relevant, limitations in the practitioner's skills or knowledge regarding the forensic assignment, and the scientific basis or limitations of the methods likely to be used.

If an examinee has not been ordered to have a forensic assessment, the FP should be sure to attain his or her informed consent. If there is a court order, however, the assessment can be conducted despite the objections of the party. FPs are warned of the perils for the litigant of providing services when the litigant is not represented by counsel. They are further reminded to make clear to collateral sources just how information obtained from them will be used, and about any right any such collateral source has to decline to participate.

Guideline 7: Conflicts in Practice

The APA guidelines recognize that FPs working in a practice world that mixes legal and clinical issues are often faced with responsibilities and demands that conflict with one another, presenting difficult ethical challenges. For example, a court order might specify that an FP render an opinion about a matter that falls outside the psychology discipline. Practitioners are reminded of the importance of adhering to the ethical principles of the psychology discipline promulgated by the APA and are encouraged to make this commitment clear to those accessing their services. If service requests are in line with applicable law but appear to demand ethically questionable behavior on the FP's part, and if attempts to resolve the conflict fail, FPs may choose to adhere to the law, but only to an extent that does not violate a person's rights.

Guideline 8: Privacy, Confidentiality and Privilege

The new guidelines remind practitioners that caution in safeguarding the confidentiality of information related to a retaining party or client is a critically important aspect of forensic practice. Responding to properly served and noticed subpoenas is a basic aspect of forensic practice, and complying with such requests for information is encouraged. FPs should seek legal advice when they have doubt about the appropriateness of certain requests. FPs are also encouraged to make the contents of their file readily attainable by the retaining party.

Guideline 9: Methods and Procedures

FPs are to strive to use methodologies that examine the psycho-legal question from all reasonable perspectives and that differentially test rival hypotheses in the matter at hand. The importance of using multiple sources of information during the forensic process is emphasized, and when data cannot be corroborated, this fact is to be made clear to the consumer of the service. FPs are also reminded in this section of the risks of rendering opinions about people who have not been directly evaluated (as is the case in situations where record review is the only option). Opinions about the psychological characteristics of individuals should only be offered when the available data is sufficient for the particular opinion. When direct, personal evaluation of a subject in a legal matter is not possible or warranted, practitioners should make clear the limitations in their data base and the related implications for the reliability of any opinions offered.

Guideline 10: Assessment

FPs are to focus forensic assessments on gathering information relevant to the psycho-legal question with which they are presented, with a focus on assisting the trier of fact. Assessment procedures are utilized in line with purposes appropriate to the particular method and in light of any research or evidence regarding their usefulness. In short, only reliable and valid methods should be chosen, and if a method is used for which validity data related to forensic applications is unavailable, the strengths and limitations of such an application should be made explicit.' FPs are to consider factors related to culture, situational demands and language when interpreting assessment results. Documenting all data that the FP is considering with sufficient detail to allow adequate discovery and reasonable judicial scrutiny is encouraged.”

Guideline 11: Professional And Other Public Communications

FPs are reminded of the critical importance of communicating, whether in reports, testimony, or public statements, in a manner marked by fairness, accuracy, and an avoidance of deception. Relevant evidence is not to be withheld nor distorted, and FPs should not participate in misrepresentation of their evidence or in partisan attempts to subvert presentation of information contrary to a litigant's position in a case. In reports, FPs should clearly distinguish between observations, inferences and conclusions, and should openly disclose all sources of information obtained during the forensic process. In reports and testimony, FPs should strive to offer a complete statement of all relevant conclusions arrived at, along with the bases and reasoning underlying the opinions proffered. Discussion of background information that does not bear directly on the psycho-legal question should be limited or avoided entirely.

Conclusion

The Specialty Guidelines for Forensic Psychology promulgated by the APA, while aspirational rather than controlling, represent a welcome evolution from prior guidelines, as they clarify important principles relevant to this challenging area of practice. Judges and lawyers will find in the details of the Guidelines a resource for determining if a particular forensic service was provided with adequate attention to forensic norms and parameters meant to ensure ethical practice and reliable work products.

Jeffrey P. Wittmann, Ph.D., a member of this newsletter's Board of Editors, is a licensed psychologist and trial consultant at the Center for Forensic Psychology in Albany. He conducts peer work-product reviews and is the author of Custody Chaos, Personal Peace (Penguin, 2001). Reach him at [email protected].'