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(p. 41) Relevant Sources of Authority for Developing Best-Practice Standards 

(p. 41) Relevant Sources of Authority for Developing Best-Practice Standards
Chapter:
(p. 41) Relevant Sources of Authority for Developing Best-Practice Standards
Author(s):

Kirk Heilbrun

, Thomas Grisso

, and Alan M. Goldstein

DOI:
10.1093/med:psych/9780195323092.003.0003
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Subscriber: null; date: 25 June 2018

Forensic psychology and forensic psychiatry have evolved over the last 100 years to the point that each is now recognized as a specialty. However, because many practitioners are not trained as forensic specialists, there are a number of practitioners whose formal training has not encompassed FMHA methodology and relevant law. It is not surprising that the quality of forensic evaluations has been to shown to vary widely (e.g., Borum & Grisso, 1995; Heilbrun & Collins, 1995; Horvath, Logan, & Walker, 2002; Nicholson & Norwood, 2000; Ryba, Cooper, & Zapf, 2003; Skeem & Golding, 1998; see also Heilbrun, DeMatteo, & Goldstein, under review) and that the methods used by experts in conducting FMHA vary considerably (Heilbrun, 2001; Horvath et al., 2002; Lally, 2003). Although malpractice suits against FMHA experts are rare (Greenberg, Shuman, Feldman, Middleton, & Ewing, 2007; Heilbrun et al., in press), the ethics codes of the American Psychiatric Association and the American Psychological Association nevertheless make it clear that anyone practicing in a specialization must be competent to do so—“experts” practice only within the boundaries of their expertise.

The need for best-practice standards in FMHA is compelling. This is true for a number of reasons. Forensic assessment can have a profound impact on those who are evaluated and their families and friends. Legal decisions can be made more fairly when judges are better informed. Professional standards can promote competent practice. Since best-practice standards represent the collective wisdom of the profession regarding the most desirable methods and decision making—the approaches that are most relevant, accurate, and psychometrically sound whenever possible—it is essential to consider the sources of authority that contribute to the development of a best-practice standard.

(p. 42) There are four domains that are relevant to informing standards of best practice:

  • Law

  • Knowledge based upon the behavioral and medical sciences

  • Professional ethics

  • Professional practice (broadly defined to include theory, guidelines, recommendations, and regulation by professional organizations)

It is true, of course, that summarizing these domains does not convey the full range of legal questions, assessment methods, and ethical conflicts in FMHA. For example, Goldstein (2003, 2007) describes 43 different areas of FMHA practice, each with some distinctive features. However, these areas are the important domains to be considered with respect to best practice. We will now examine each of these sources of authority and the contributions of each to FMHA.

Law as a Contributor to Best-Practice Standards

A major factor that sets FMHA practitioners apart from clinical psychologists and psychiatrists working as treatment and assessment professionals is the need to rely on the legal system—statutes, case law, and administrative code—in designing and structuring FMHA. This includes the methodology, content domains, and work products (written reports and possibly oral testimony; see Ewing [2003] for a fuller discussion of the relevance of law to FMHA).

FMHA, whether civil or criminal in nature, is driven by legal statutes and relevant case law. A forensic expert cannot conduct an evaluation without an understanding of the elements of the legal competency he has been asked to address. For example, an expert is asked to evaluate and offer an opinion as to whether a 10-year-old autistic girl, an alleged victim of a rape, can serve as a sworn witness at trial. This assessment cannot be conducted without understanding the relevant legal statutes and case law, which define the requirements of a (p. 43) sworn witness and distinguish between a sworn and an unsworn witness. An evaluation of that child’s IQ, personality characteristics, judgment, and neuropsychological status can explain why she might be competent to serve as a sworn witness. However, it is by considering the legal definition of a “sworn witness” and determining the “functional legal capacities” (Grisso, 1986, 2003) of such a witness (that is, what is expected of the witness) that the forensic expert can provide the most relevant information to the trier of fact (the judge or jury) to facilitate an informed legal determination on this issue.

Similarly, a forensic clinician may be asked to evaluate a defendant’s mental state at the time of a crime as part of a possible insanity defense. If the forensic clinician provides only a diagnosis and description of the defendant’s thinking, feelings, and sources of stress around the time of the offense, this would miss an important aspect of the insanity defense: whether this defendant knew or could appreciate what he was doing at the time of the crime or if he was aware of the wrongfulness of his actions. (In some jurisdictions, an additional relevant consideration would be whether the defendant was capable of conforming his conduct to the requirements of the law). It is, therefore, imperative for an expert to possess a reasonable understanding of the appropriate statute and applicable case law that address the legal referral question because the information contained in these sources shapes the evaluation itself and structures the focus of the report and testimony. In addition, the applicable evidentiary law helps shape how evaluations are conducted and what kind of information can be presented in reports and testimony. Knowledge of such legal procedures is likewise very important in conducting FMHA.

The Law: Defining the Focus of FMHA

The law serves to regulate human behavior. Those who are experts in the behavioral sciences may be called upon to offer opinions regarding the influences that may underlie, explain, or mitigate a person’s actions that resulted in a legal proceeding. The findings of these assessments (expert opinions if the expert is deemed to meet the legal requirements of an expert witness), which will be considered later in this chapter, have as a goal providing the trier of fact with (p. 44) information that goes beyond the scope of knowledge of the trial judge or the average juror.

As discussed earlier, FMHA practitioners cannot begin to conduct an assessment without first having a reasonable understanding of what the law considers relevant in a specific case. Legal terms are not synonymous with psychological concepts, and the FMHA expert must have an understanding of the legal concepts when designing the evaluation. For example, in a case in which the expert is asked to evaluate whether a defendant was able to validly waive her Miranda rights, the focus of the assessment and the selection of instruments used to gather data for an opinion must be driven by the legal standard—whether the examinee can make a knowing, intelligent, and voluntary waiver of these rights. The terms “knowing,” “intelligent,” and “voluntary” are legal concepts. As such, the novice forensic mental health professional should not make the assumption that a term such as “intelligent” refers to a level of intellectual functioning or cognitive ability that can simply be measured by an intelligence test. As Grisso (2003) cautioned, forensic assessments must be relevant to the legal issue. The forensic mental health expert must “operationalize” the legal competency standard, incorporating corresponding mental health and behavioral concepts into the assessment. In this way, the expert is focusing on relevant legal concepts that are particularly important to the legal decision maker. Testimony characterized by the presence of diagnoses or symptoms as its major focus (i.e., “the defendant was schizophrenic at the time of the crime”) is at best incomplete and at worst irrelevant, as “the law does not presume that any psychiatric diagnostic condition is synonymous with any legal incompetency”(Grisso, 1986a, p. 8). This was true when Grisso wrote it in 1986, and remains largely true today. However, there have been two important U.S. Supreme Court decisions that draw a direct link between (a) diagnostic condition and legal outcome (those with mental retardation are ineligible for the death penalty; see Atkins v. Virginia, 2002) and (b) age and legal outcome (defendants under 18 at the time of the offense are ineligible for the death penalty; see Roper v. Simmons, 2005), respectively. It is important, therefore, that the forensic mental health expert possess a thorough grasp of the legal underpinnings of FMHA.

(p. 45) The Law: Deciding Who Is an Expert

In order to testify as an expert witness, the law requires that the mental health professional be accepted as such by the trial court judge. Although an attorney may retain a psychologist or psychiatrist as an expert, it is the court that determines whether this person can offer courtroom testimony. The designation of “expert witness” by a judge grants a special status to the mental heath professional. Unlike the “fact witness” or lay witness whose testimony is confined to knowledge usually acquired based upon what that individual has seen or heard directly, expert witnesses are permitted to offer opinions. They can testify to what they believe, interpreting the data and making use of their observations of the examinee in ways that go beyond a description of the facts. Bank and Packer (2007, p. 423) offer the following example to distinguish “fact” from “expert” witness testimony: “Whereas a lay witness can testify to observing someone ‘discussing tax law with his beagle,’ only the expert witness can offer opinions or conclusions as to whether the individual was mentally ill at the time.”

Jenkins v. United States

In a landmark case decided in the D.C. Circuit Court of Appeals, Jenkins v. United States (1962), the court opined that an individual is not granted the status of expert merely by virtue of having professional degree. Rather, the expert is asked a series of questions in court by the retaining attorney (opposing counsel and the judge may also ask questions). After considering the potential expert witness’s credentials, the judge decides whether the legal criteria for serving as an expert witness have been met. Only then can the expert offer opinions for consideration by the trier of fact.

In Jenkins, the court recognized that during this process of questioning (called voir dire, meaning to speak the truth, a legal procedure used to determine one’s appropriateness to serve a legally relevant role such as expert witness or juror), potential expert witnesses must demonstrate the appropriate background, education, skills, training, or knowledge to qualify as experts, a designation that grants them “exceptional latitude in their testimony” (Ewing, 2003). The concepts (p. 46) delineated in Jenkins have been incorporated into Rule 702, Federal Rules of Evidence:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

[See http://www.law.cornell.edu/rules/fre/ACRule702.htm.]

Criteria for Expertise

Because the scope of FMHA encompasses a wide range of legal issues, the concept of a “generic” expert does not exist. A forensic mental health professional cannot possibly be an expert on every legal issue that courts litigate. It must be demonstrated that the proposed expert possesses the specialized education, experience, knowledge, training, or skill relevant to the specific legal issue to be decided by the court. A best-practice standard recognizes that, before accepting a case, the mental health professional should be confident that she satisfies these criteria for expertise in the context of this case. Forensic mental health experts should possess the specialized knowledge required to participate in the case (e.g., sentencing, mental state at the time of the crime, employment discrimination, child custody) and be familiar with individuals of similar age, characteristics, and legal status to those of the examinee.

The Law: Determining Admissibility of Expert Testimony on a Specific Topic

If recognized by the court as an expert, the forensic mental health professional may be required to indicate the nature of the testimony to be offered and the methodology upon which the opinions are based. This is more likely if the proposed testimony would address a topic not usually considered by the court (e.g., the likelihood that a defendant has given a false confession) or involves the use of a specialized tool by the expert as part of the FMHA (e.g., instruments related to evaluating the likelihood sexual violence recidivism). The law has requirements that must be met in order for testimony to be admissible. The major (p. 47) purpose of such evidentiary criteria is “to prevent unqualified experts from testifying in the courtroom on the basis of irrelevant or inadequate evidence” (Weissman & DeBow, 2003, p. 47). Experts must ensure that, when a case is initially accepted, their approach to FMHA is such that their evaluation and oral testimony would meet the legal standard for admissibility, both in substance and in methodology.

Frye and Daubert Standards

Testimony offered by forensic mental health experts must rely, at least in part, on science (Ewing, 2003). In Frye v. United States (1923), the court held that in order for expert testimony to be admissible, it “must be sufficiently established to have gained general acceptance in the particular field in which it belongs” (p.10). The Frye standard was incorporated into federal and state jurisdictions. It served as the most influential standard for admissibility of expert testimony until 1993, when the U.S. Supreme Court decided that the more expansive criteria for the admissibility of expert testimony described in the Federal Rules of Evidence superseded Frye in federal jurisdictions (Daubert v. Merrell Dow Pharmaceuticals, 1993). The Court held that the Frye test was too restrictive. Instead, it should be replaced by a broader standard based on whether such testimony would be likely to assist the trier of fact and if such testimony and the methods upon which it is based were reliable and relevant. As such, in all federal courts and in those states that have adopted the Daubert standard, testimony must be both substantively and methodologically consistent with scientific procedures. Unlike Frye jurisdictions, in which the court must only determine whether expert testimony is based on techniques that are generally accepted, judges in Daubert jurisdictions must play a more active role. The judge may be asked to consider a range of factors under Daubert. These include whether the theory or technique in question can be tested, whether it has been tested, whether it has been subjected to peer review and publication, its known or potential error rate, the existence and maintenance of standards controlling its operation, and whether it has attracted widespread acceptance within a relevant scientific community. The consideration is flexible and must focus on principles and methodology rather than conclusions (1993).

(p. 48) Subsequently, the U.S. Supreme Court (in General Electric Co. v. Joiner, 1997) held that the trial court judge’s decision cannot be overruled by an appeals court (except in rare cases of abuse of judicial discretion). Preliminary hearings addressing the Frye or Daubert requirements are therefore critical to any criminal or civil trial; if the legal standard is not met, the forensic expert will not be permitted to testify. Whether practicing in a Frye or Daubert jurisdiction, forensic mental heath experts should be aware of the specific evidentiary law that governs the admissibility of their testimony. As part of a best-practice standard, experts should anticipate that testimony on an unusual or controversial topic or the use of a specialized tool may be subject to legal challenge. A best-practice standard would thus require forensic mental health professionals to be experts in both practice and the underlying science.

The Law: Setting Limits on Expert Testimony

The legal system sets evidentiary criteria used to determine the admissibility of expert testimony. It also sets legal limits on the subject matter of the testimony itself. There are two particularly significant legal limitations on the testimony of forensic mental health experts: reliance on third party information as a source of data in forming opinions, and whether experts can testify to the ultimate issue (the legal question to be decided by the trier of fact).

Third Party Information

Forensic assessments differ significantly from traditional clinical evaluations in the presence of substantial external incentives to deceive the forensic examiner. To manage this challenge, experts must consider third party information—reviewing records and interviewing others (collateral informants) familiar with the examinee and the issue in question—to corroborate data provided by the litigant in testing and interviews. Third party information is, from a legal perspective, hearsay. The expert using such information must rely on the indirect sources of records and interviews with collateral observers. While fact witnesses are not permitted to testify about hearsay information, the rules are somewhat different for forensic mental health experts. The (p. 49) Federal Rules of Evidence allow the use and admissibility of third party information:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.

[Rule 703; see http://www.law.cornell.edu/rules/fre/ACRule703.htm.]

There are certain advantages provided by the use of third party information in FMHA. Such information can (a) increase the accuracy of the findings; (b) increase the face validity of the evaluation and testimony; (c) improve communication with attorneys and judges regarding the assessment; and (d) provide information to the forensic mental health expert as to the role of deliberate distortion by the examinee (Heilbrun, Warren, & Picarello, 2003).

Such use of third party information would probably be admissible under Frye as a method that is generally accepted. Although the question of the admissibility of third party information could be more complex in Daubert jurisdictions, it does not seem to have been raised with any frequency. Heilbrun (1996) noted, in a review of 276 appellate cases involving Daubert challenges in the three years following the original decision, that none of these challenges involved the use of third party information. In a review of the legal and ethical issues associated with using third party information in FMHA, Otto, Slobogin, and Greenberg (2007) indicated that “most courts are willing to permit testimony based on virtually any third-party information, even when it is from a source whose credibility may be questionable” (p. 192). They cited a number of decisions in which hearsay statements were deemed acceptable, including statements offered by “a government agent (United States v. Sims, 1973, p. 149), (p. 50) a codefendant (United States v. Wright, 1986, p. 1100), and reports of nonclinical staff (United States v. Bramlet, 1987, p. 856).”

However, a New York State criminal case, People v. Goldstein (2005) added a major wrinkle for forensic experts conducting FMHA in that state and may eventually be adopted in other jurisdictions. Relying on a U.S. Supreme Court decision (Crawford v. Washington, 2004) in which it was held that the government could not introduce statements of a testimonial nature made by an unavailable witness, the New York court indicated that unless the corroborative informant is available to testify (and be cross-examined), experts cannot testify to such third party statements. Forensic mental health experts should continue to include third party information in their evaluations. But in jurisdictions that adopt Goldstein, they must be particularly cautious in their interviews of third parties. Before conducting such interviews, they should be confident that anyone interviewed as a collateral source of information will be available for trial—or the expert must be prepared to explain why that person will not be available to testify at trial.

Ultimate Issue Testimony

In some jurisdictions, the law also prohibits testimony on the ultimate issue (the legal question to be answered by the trier of fact). There continues to be an ongoing debate about how far an expert can go in stating an opinion that is at the heart of ultimate issues such as whether a defendant was capable of waiving Miranda rights, whether the defendant was insane at the time of a crime, or which parent should be awarded custody (Grisso, 1986; Morse, 1999; Poythress, 1982; Rogers & Ewing, 1989; Slobogin, 1989). There have been ethical, empirical, and legal justifications offered in support of barring ultimate issue testimony, but this is not a question that has been settled in the field (Heilbrun, 2001).

According to Rule 704(b) of the Federal Rules of Evidence:

No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

(p. 51) In federal jurisdictions on the issue of sanity at the time of the offense, forensic mental health experts are prohibited from testifying to both the ultimate issue (i.e., “The defendant was, in my opinion, insane at the time of the crime”) and the penultimate opinion, (i.e., “In my opinion, at the time of the crime the defendant suffered from a severe mental disease or defect, and as a result, was unable to appreciate the nature and quality or the wrongfulness of his act” [as defined by the federal Insanity Defense Reform Act, 18, U.S.C. Sec. 17, 1984]). However, in federal court, an expert is permitted to testify as to the defendant’s diagnosis, behavior, and mental state at the time of the offense. All federal courts have interpreted this statute to exclude testimony on strict mens rea (whether the defendant possessed the requisite mental state at the time of the crime to be held legally culpable) (Goldstein, Morse, & Shapiro, 2003). However, forensic mental health experts are permitted to testify as to a defendant’s personality characteristics and signs of mental abnormality as long as these symptoms and behaviors are not connected in the testimony to the legal elements required to establish mens rea (United States v. Cameron, 1990; United States v. Childress, 1995; United States v. Pohlot, 1987).

A judge may exclude ultimate opinion testimony even in jurisdictions that allow it. Such a judge might reason that (a) these opinions go beyond the expertise of the forensic clinician, and (b) such testimony represents legal conclusions that the trier of fact has been charged with deciding. (It should be noted that when the trier of fact reaches a verdict, it is referred to as a “fact”; experts are restricted to presenting “opinions”). But in most jurisdictions, forensic experts are allowed to offer ultimate legal opinions (Goldstein, Morse, & Shapiro, 2003).

A best-practice standard would require that forensic mental health experts be familiar with the applicable law on ultimate opinion testimony. Such testimony can usurp the role of the fact-finder by adding moral and community-value-laden elements to the scientific and clinical expertise required of the forensic clinician (Morse, 1999; Melton et al., 2007), answering the question that cannot be answered without interjecting such values: How impaired must an individual be in order to be legally insane? Tillbrook, Mumley, and Grisso (2003) have reasoned that, because there is no scientific or clinical basis to measure or objectify such legal concepts as “sufficient present ability,” (p. 52) then “mental health professionals cannot properly draw conclusions about how much incapacity, dangerousness, etc. is enough to meet the legal standard” (p. 83). They argue that ultimate opinions on such issues are inappropriate and illogical, threatening the integrity of the legal process and the credibility of forensic mental health professions. Similarly, Heilbrun (2001) asks, “How much ability is legally enough?” (p. 223). In some states and in federal jurisdictions, however, applicable rules on FMHA (particularly those focusing on trial competency) require experts to offer ultimate opinions on the ultimate legal issue. As well, there may be policy or practice considerations in some hospitals or court clinics in the public sector that require evaluators to express an ultimate issue conclusion in order to trigger a certain response (e.g., a hospital report that did not give an opinion that the defendant was competent to stand trial might not result in the defendant’s being transported back to court for disposition of charges). Finally, several psycholegal scholars (e.g., Rogers & Ewing, 1989; Rogers & Shuman, 2000) have argued in favor of providing ultimate legal opinions, reflecting the absence of consensus in the field on this question.

The Law and the Threshold for Offering an Expert Opinion

A forensic mental health professional is accorded special status, permitting him to offer opinions, when recognized as an expert by the court. Although such opinions may fall short of addressing the ultimate issue, opinions regarding the findings of the FMHA relevant to the legal question are admitted into the record to be considered by the trier of fact. In soliciting opinions in court, attorneys frequently ask the expert whether the opinions the expert has reached meet a certain level of confidence. The question typically is asked as follows: “Have you formed an opinion as to [the matter in question] to a reasonable degree of psychological/medical certainty?” The legal and practice implications of the concept “psychological/medical certainty” should be thoroughly considered by the testifying expert before responding to this question.

Experts in the “hard sciences” are typically asked whether opinions they have reached rise to the level of a reasonable degree of (p. 53) scientific certainty. However, it may be that scientific certainty is not the appropriate standard to use for FMHA. The subject matter of psychology is based upon scientific research. However, FMHA incorporates both scientific data (using, for instance, results from psychological tests and specialized forensic assessment instruments) and idiographic data (obtained from a single individual, the litigant in the case). Experts should rely on data from peer-reviewed scientific studies whenever possible—but these data must still be applied to the unique facts of the case and the specific features of the litigant. Moreover, there are some aspects of scientific decision making that do not correspond well with the FMHA process. It would not be meaningful, for instance, to use the conventional scientific probability of .05 with respect to individual results.

Forensic mental health experts typically are asked to respond to questions focusing on psychological certainty (or professional certainty, or medical certainty), a concept conventionally accepted in evidentiary law but whose meaning is not precise. A series of law review articles has addressed the imprecision of this standard. Lewin commented, “Although judges expect, and sometimes insist, that expert opinions be expressed with ‘reasonable medical certainty,’ and although attorneys ritualistically intone the phrase, no one knows what it means! No consensus exists among judges, attorneys, or academic commentators as to whether ‘reasonable medical certainty’ means ‘more probable than not’ or ‘beyond a reasonable doubt’ or something in between” (1998, p. 380). Similarly, Faigman noted that the term medical/psychological certainty “has no empirical meaning and is simply a mantra repeated by experts for purposes of legal decision makers who similarly have no idea what it means. Case-specific conclusions, in fact, appear to be based on an admixture of knowledge of the subject, experience over the years, commitment to the client or cause, intuition, and blind faith. Science it is not” (2006, p. 1224). (See also Craig, 1999; Bradford, 2001.)

In Hahn v. Union Pacific Railroad (2004), an Illinois state appellate court observed that there is “no magic to the phrase itself. The phrase provides legal perspective to medical testimony and signals to the jury that a medical opinion is not based on mere guess or speculation. It is of no consequence that a medical expert fails to (p. 54) use this phrase if the expert’s testimony reveals that his opinions are based upon specialized knowledge and experience and recognized medical thought.” In this particular case, Union Pacific Railroad contended that Hahn’s attorney had not prefaced questions to his expert with the phrase “based upon a reasonable degree of medical certainty.” The appellate court added that when experts are not able to offer “an unequivocal opinion,” then opinions based upon knowledge and experience are distinct from those based upon mere speculation.

It seems clear that, “reasonable degree of psychological/medical/professional certainty” has no precise meaning. But there remains the question of the threshold to be applied in FMHA in reaching opinions. In an informal survey of psychologists who are board certified in forensic psychology by the American Board of Professional Psychology, conducted in July 2007 by one of the authors (A. Goldstein), a range of responses was received regarding both the meaning of “reasonable psychological certainty” and the level of certainty required to proffer an opinion. In general, respondents cautioned against confusing this legal concept with the conventionally accepted level of scientific certainty reflecting the probability of a Type 1 error (.05 level of significance). Estimates proposed by respondents to this survey as to the percentage of confidence required to proffer an opinion ranged from “above 50% certainty” to “above 80%.” As such, it appears that reliance on a specific threshold, expressed in terms of a percentage of confidence or certainty, is not meaningful for FMHA experts when deciding whether an opinion can be relied upon. Many forensic psychologists who responded to this informal survey emphasized that opinions should be grounded in the data, not based on speculation, a recognition that expert opinions must be based on information that can be explained and cited in reports and testimony.

Best-Practice Standard

A best-practice standard requires that forensic mental health experts consider the standard associated with proffering an opinion. It is possible that the expert will be asked a question that incorporates this standard as part of their testimony. Even if there is no such question (p. 55) in testimony, or if the FMHA report is entered into evidence without oral testimony, it is still important that the expert be aware of the basis for the opinion and the level of confidence required to form it. We propose the following threshold:

Opinions should be data based, including thorough consideration given to all sources of information: comprehensive notes of litigant’s interview responses; results of all psychological tests and instruments; information provided by third parties; and a review of records. Relevant studies, published in peer review journals on issues related to the specific case, should be considered as well. Findings should be examined for consistency within and between data sources; major inconsistencies may preclude forming an opinion. Whenever possible, opinions should incorporate sources with established reliability, and with validity for purposes consistent with the present evaluation. Alternative opinions conflicting with the opinions reached, should be considered, and rejected when they are less consistent with all of the information available to the expert.

Such a best-practice standard would promote an FMHA methodology that is careful, systematic, and data-driven. This is not to suggest that forensic experts substitute this standard for the legally conventional “reasonable degree of certainty,” or even offer to define the reasonable certainty standard if they are not asked to do so. Such attempts may yield benefits that are far outweighed by costs (see, e.g., Morse, 1982; Poythress, 1982). But using such a standard, and providing it to explain one’s methodology when asked, is well within the spirit of FMHA best practice.

The Law Affecting the Regulation of FMHA Practice

State and provincial licensing laws regulate the practice of forensic mental health professionals in a number of ways. Each jurisdiction sets its own licensing requirements. Licenses are largely generic; states and provinces license psychologists and physicians but do not otherwise certify specific expertise, leaving such certification to specialty boards recognized by professional associations. Jurisdictions typically limit the practice of mental health professions (p. 56) under applicable licensing regulations and ethics codes to activities that fall within the boundaries of the licensee’s background and training.

Specialty Certification and Training

There are, however, a few jurisdictions that offer limited specialty certification. For example, in the Commonwealth of Massachusetts, psychologists employed or contracted by Departments of Mental Health or Corrections to conduct public-sector, court-ordered forensic assessments must become “designated forensic psychologists” or “certified juvenile court clinicians.” To earn this designation, the psychologist must undergo a review of prior work and pass a written examination. In Michigan, state employees who conduct courtappointed trial competency assessments can become “certified forensic psychologists.” If they also conduct criminal responsibility assessments, they can be designated “consulting forensic examiners.” Applicants in Michigan must meet requirements involving supervision, experience, and participation in a mock trial, although a formal written examination is not given. Missouri has established training, experience, and supervision criteria for all psychologists or physicians employed or contracted by the Department of Mental Health to conduct trial competence or criminal responsibility assessments. Those who meet these standards may be required to take a written or oral examination or both and become “certified forensic examiners.” In some circumstances, any of Missouri’s requirements can be waived if the committee agrees that applicants have acquired equivalent experience or knowledge of forensic assessments.

There are other jurisdictions that offer specialized training but not certification. In Virginia, forensic mental health experts who conduct evaluations of competence to stand trial, sanity at the time of the offense, or sentencing are required to complete training approved by that state’s Commissioner of Mental Health, Mental Retardation and Substance Abuse Services and conducted by the Institute of Law, Psychiatry, and Public Policy at the University of Virginia. Specialized forensic training for mental health professionals is provided in Florida by the Florida Mental Health Institute, University of South Florida.

(p. 57) Conducting FMHA Out of State

The issue of conducting FMHA out of state (in jurisdictions in which the practitioner is not licensed) is a controversial one. If the examinee travels to the state in which the practitioner is licensed for the assessment, this problem may be avoided. However, in criminal cases in which defendants are unable to post bond and remain incarcerated, this is not practical. A number of forensic mental health experts have discussed the issue of conducting FMHA in jurisdictions in which the professional is not licensed (e.g., Drogin, 1999; Shuman, Cunningham, Connell, & Reid, 2003; Tucillo, DeFilippis, Denny, & Dsurney, 2002; Yantz, Bauer, & McCaffrey 2006). Drogin (1999) reported that 32 of 50 states offered ways in which mental health professionals not licensed in that jurisdiction might be deemed eligible to practice on a temporary basis, and suggested how attorneys might be able to obtain temporary permission for their experts to conduct FMHA. Tucillo and colleagues (2002) noted that 40 of 50 states permitted some form of temporary license, most of which carried specific time restrictions. Shuman and colleagues (2003) discussed the potential pitfalls in conducting such evaluations in states in which the professional was unlicensed, and proposed a model to address this problem. Most recently, Yantz et al. (2006) found that all 10 Canadian provinces and territories surveyed allowed temporary licenses, as did 40 of the 50 states in the United States. However, they added that time limits and specific requirements for temporary licenses varied widely, from five days a year in Vermont to up to one year in Massachusetts. It is clear that forensic mental health professionals conducting FMHA should be familiar with licensing requirements in all jurisdictions in which they conduct evaluations.

Behavioral and Medical Sciences Contributing to Best-Practice Standards

The behavioral and medical sciences provide the conceptual and empirical foundations on which FMHA is based. This knowledge base provides data, tests, and specialized tools that allow forensic mental health experts to incorporate measures with established reliability and validity into their forensic assessment. In addition, it provides an empirical basis for interpreting the data offered by experts in their reports and testimony.

(p. 58) Scientific Knowledge Providing the Theoretical Basis for FMHA

As discussed by Goldstein (2003), college students taking their first psychology course quickly learn that behavior falls on a continuum, often represented by the normal distribution curve. Distribution curves serve as statistical and graphical representations of one fundamental underpinning of the discipline of psychology. Most behavior cannot accurately be classified as falling into one of two discrete categories. Rather, behavior is complex and multi-determined. Students who complete advanced degrees, whether in psychology or medicine, come to accept the concept of behavior as complex and widely distributed. However, in forensic mental health practice, these same professionals work within a legal system that uses a decision-making system in which the options are typically dichotomous and forced-choice. The law usually requires the trier of fact to reach verdicts that fall within one of two discrete categories (e.g., “sane” versus “insane,” “competent to stand trial” versus “incompetent to stand trial,” “liable” versus “not liable”). The theoretical and scientific aspects of psychology and psychiatry should suggest to forensic mental health professionals that they would be wise to avoid using only dichotomies, however consistent such dichotomous classifications might be with the structure of legal decision making. FMHA opinions should reflect the complexity of the findings, contradictions, and variations contained in the data, and avoid summarizing and categorizing the results of the evaluation in reductionistic fashion.

Theoretical Models for Conducting FMHA

Texts published in the 1980s and 1990s provide a relatively consistent theoretical model for conducting FMHA. In general, authors recommended that FMHA be driven by the appropriate legal statutes and case law that underlie the referral question. They emphasized that objective measures (including traditional tests and forensic assessment instruments) should be used in conducting evaluations whenever possible. Authors also recommended that multiple sources of information be used (Blau, 1984; Grisso, 1986; Gutheil & Appelbaum, 1982; Melton, Petrila, Poythress, & Slobogin, 1987, 1997; Shapiro, 1984, 1991). More recently, these recommendations have been reinforced (p. 59) and elaborated (Goldstein, 2003a, 2007; Grisso, 2003; Heilbrun, 2001; Heilbrun, Marczyk, & DeMatteo, 2002; Heilbrun, Warren, & Picarello, 2003; Melton, Petrila, Poythress, & Slobogin, 2007; Otto, Slobogin, & Greenberg, 2007).

For over 20 years, Grisso’s text, Evaluating Competencies (1986a, 2003) has provided the principal theoretical model that structures and guides FMHA. Grisso (1986a) argued that most of the discontent with FMHA fell within three domains:

  1. 1. ignorance of the laws that drive the evaluation, and the resulting irrelevance of the report and opinion;

  2. 2. intrusion into matters of the law, including opinions that address the ultimate legal question; and

  3. 3. insufficiency (reliance on inadequate information upon which to base opinions) and incredibility (speculation rather than data-based findings).

The model for conducting FMHA originally proposed by Grisso (1986a) emphasizes the need to appropriately identify and understand the “legal competency” construct (the legal statute and case law relevant to the legal referral question) and to “operationalize” this construct so that its legal components are expressed in terms of “functional abilities,” behaviors that forensic mental health professionals are qualified to evaluate. Grisso’s model emphasizes the use of empirically based data whenever possible, rather than relying solely on observations and clinical impressions. Findings of the FMHA should then be interpreted in terms of the degree to which the person’s functional abilities are congruent with those required under the legal standard: is the specific legal competence demonstrated?

Principles, Guidelines, and Maxims for FMHA

Others have described principles, guidelines, and maxims for FMHA, which will be discussed in the next chapter of this book. Heilbrun (2001) proposed 29 specific principles for conducting FMHA, and Melton et al. (2007) also offered broad principles applicable to forensic assessment. Simon and Gold, in an edited volume focusing largely on forensic psychiatry, provided practice guidelines contributed by the author(s) of each chapter. Brodsky (1991, 1999, 2004) has described (p. 60) maxims for expert testimony that focus on expert testimony, much as these other authors have focused on the evaluation and reporting aspects of FMHA. Each of these, to be discussed in detail in the fourth chapter, provides theoretical contributions to a best-practice standard.

Scientific Knowledge Promoting Accurate Observation and Measurement

The methods used by forensic mental health experts in conducting a range of court-related evaluations have been reviewed by a number of researchers (Borum & Grisso, 1995; Heilbrun & Collins, 1995; Horvath, Logan, & Walker, 2002; Nicholson & Norwood, 2000; Otto & Heilbrun, 2002; Ryba, Cooper, & Zapf, 2003; Skeem & Golding, 1998). These studies have reported inconsistency in the quality of forensic assessment practice in general. In addition, there has been an increasing focus on evidence-based practice over the last decade, including approaches to psychotherapy and assessment. For example, Messer (2004) has emphasized the need for empirically supported treatment, and others (Barlow, 2005; Norcross, Beutler, & Levant, 2006; Reed, Kihlstrom, & Messer, 2006) have called for scientifically based therapy and the use of assessment instruments with established reliabilities and validities. Barlow (2005) recommended that evaluation strategies be based upon psychometrically sound measures, established by the “best evidence available.” Norcross et al. (2006) have argued against relying only on clinical observations and judgment, anecdotal evidence, and customer-satisfaction ratings, emphasizing instead the importance of using assessment tools that have been empirically validated.

Assessment Strategies for FMHA

In FMHA, experts are asked to evaluate behavior related to specific psycholegal competencies. The focus of such evaluations is typically not limited to describing relevant thinking, feelings, symptoms and behavior, or measuring an individual’s intellectual functioning. Rather, these highly specific evaluations require assessment strategies developed specifically for FMHA. Certain traditional psychological assessment techniques may be of some value in explaining why a defendant is or is not legally competent. However, other sources of (p. 61) information (including specialized forensic assessment instruments, when available, as well as interviews with the defendant and collaterals, and review of records) also provide important data that are sometimes even more directly relevant to the psycholegal referral question.

For example, in assessing fitness for trial, experts may rely on multiple sources of data, including interviews with the defendant (on such issues as his understanding of the charges against him, his grasp of the role of court personnel and their function as it relates to his case, his relationship with his attorney); a review of the records (e.g., police reports, jail and forensic unit progress notes); interviews with third parties (e.g., treating professional staff, the defendant’s attorney); results of forensic assessment instruments (e.g., MacCAT-CA, ECST-R); and findings based on forensically relevant instruments (e.g., SIRS, VIP). Information based on these sources of data provides data of direct relevance to the legal referral question(s) (Does the defendant have the necessary capacities to be considered competent to stand trial? Is the defendant feigning symptoms or deficits that would lead to a finding of trial incompetence?). If a traditional test such as the WAIS-III is administered, it will provide information about some capacities (e.g., vocabulary, verbal reasoning, information processing) that is important in describing certain deficits that may interfere with the person’s functional capacities to understand charges and assist counsel in her defense. It would not, however, provide a direct measure of functional capacities in the way that a relevant, specialized forensic assessment instrument (FAI) would.

In addition, FMHA (particularly in criminal areas) is conducted on individuals from diverse backgrounds, often populations either not represented or underrepresented in the norms of the instruments employed. Lally (2003), in a survey of experts who were board certified in forensic psychology (ABPP) identified differing views on how to handle the problem of measures that are insufficiently normed on criminal justice populations, and (more generally) on the acceptability (consistent with Frye) of particular psychological tests in FMHA. Participants were asked to rate a number of assessment instruments for acceptability in six areas of forensic practice: trial competence, mental state at the time of the offense, violence risk assessment, sexual violence risk assessment, waiver of Miranda rights, and malingering. (p. 62) Lally concluded that projective techniques were generally rated as unacceptable (especially the use of projective drawings) and that no “general acceptance” standard (consistent with Frye) emerged for any particular test because of the lack of agreement on the acceptability of these instruments.

Importance of Best-Practice Standards

Although FMHA should draw upon scientific knowledge to provide a reliable basis for the observation and selection of methods, establishing a basis for scientifically driven FMHA is challenging. It is even more complex when one considers the importance of specialized forensic assessment instruments and the diversity of the populations being evaluated. A best-practice standard must provide guidance on acceptable methods. In considering such standards, practicing forensic mental health professionals should be familiar with the validity and reliability of the tests and instruments they are considering when planning an assessment strategy. They would need to justify the use of any measure when used with populations not adequately represented in the standardization sample. Experts must also be familiar with the test manuals that contain information on norms, reliability, and validity. Grisso (1986a, 2003) has reviewed a range of forensic assessment instruments in terms of their scientific support. Experts should be well aware of the forensic relevance, applications, and limitations of such measures. Because the issue of response style is an important consideration in FMHA, experts should also be well versed in the scientific properties of tests commonly used to address this critical issue (Rogers, 1997, 2003). Similarly, because third party information is a source of the data upon which opinions are based, forensic mental health professionals should be aware of the value of these sources (Heilbrun, Warren, & Picarello, 2007; Otto, Slobogin, & Greenberg, 2003).

Science Providing Support for FMHA Data Interpretation

To increase the empirical basis for interpretation of data, forensic mental health professions are increasingly incorporating base rates into their evaluations. For example, Monahan reviewed the use of actuarial instruments in conducting assessments for violence risk (p. 63) (2003). He reported, “The general superiority of statistical over clinical risk assessment in the behavioral sciences has been known for almost a half century … (p. 531).” Similarly, Conroy (2003) described problems associated with the clinical prediction of sexual violence risk, concluding, “actuarial approaches are generally more accurate than clinical prediction” (p. 469). In the course of forensic evaluation, however, both nomothetic (group-based) and idiographic (single case) data must be considered (Heilbrun, 2001; Heilbrun et al., 2004). Nomothetic data include norm-referenced instruments and specialized tests, and a consideration of base rates used to compare the litigant to those in relevant known groups. Ideographic data focus on information specific to the individual and to the unique circumstances of the case, comparing that person’s characteristics in the specific situation in question to the individual’s characteristics at other times. The appropriate use of nomothetic and ideographic evidence contributes to the evaluation’s thoroughness and credibility.

The use of specialized forensic assessment instruments (FAIs) with established reliability and validity contributes to the use of empirically based measures when collecting and interpreting FMHA data. A best-practice standard should include the use of such instruments when available and applicable, to increase the comprehensiveness and strengthen the empirical base of the resulting opinions. However, even empirically validated instruments can be misused when interpreted in forensic contexts (DeMatteo & Edens, 2006; Edens, 2001; Skeem, Golding, Cohn, & Berge, 1998), so care must be taken to ensure their appropriate application to the individual and the specifics of the case.

Professional Ethics Contributing to Best-Practice Standards

In seeking to balance such competing influences, forensic mental health professionals seek guidance from their respective codes of ethical conduct. The American Psychological Association’s Ethical Principles of Psychologists and Code of Conduct (Ethics Code) (APA, 2002a) is written to apply to all areas of psychology. Principles are written broadly, to be applicable across a wide range of psychological (p. 64) settings. Consequently, when a psychologist encounters a conflict in a specialized area of practice, the breadth of the applicable principles may offer (limited) specific guidance to the practitioner. For that reason, the American Psychological Association has endorsed a number of guidelines that are more specific to specialty areas. Guidelines include those addressing such legal topics as child custody assessments (APA, 1994), evaluations in child protective matters (APA Committee on Professional Practice and Standards, 1998), and record-keeping (APA, 2007). These guidelines do not represent enforceable ethical standards, as are contained in the Ethics Code. However, psychology ethics committees on the national and state levels frequently employ them to interpret the broader Ethics Code.

In addition to the guidelines endorsed by American Psychological Association, the Specialty Guidelines for Forensic Psychologists (Specialty Guidelines), published in 1991, serve as a major source of ethics information for forensic psychologists. This document, authored by a committee composed of members from the American Board of Forensic Psychology (ABFP: the forensic certification board of the American Board of Professional Psychology) and the American Psychology-Law Society (AP-LS, Division 41 of APA), represents an aspirational model for forensic psychology practice. Like other ethical guidelines that are separate from the Ethics Code, this document is not an enforceable code, but it may be used by ethics committees to interpret the Ethics Code.

The American Psychiatric Association’s Principles of Medical Ethics with Annotation Especially Applicable to Psychiatry (American Psychiatric Association, 2001) provides ethical standards that all psychiatric practitioners are expected to follow. However, because this code of conduct is generic, its applicability to forensic psychiatric practice is limited. The American Academy of Psychiatry and the Law (2005) has provided a more specific set of ethical guidelines: Ethics Guidelines for the Practice of Forensic Psychiatry (Ethics Guidelines). These guidelines address four major areas: confidentiality, consent, honesty and striving for objectivity, and qualifications of examiners.

Ethics codes are important in the mental health field. They address risk management issues, protect the civil rights of clients, and clarify the standards of practice for mental health professionals. By adhering to ethical requirements related to confidentiality, informed (p. 65) consent, release of records, and the requirement that mental health professionals be aware of biases that might affect their expert opinions, professionals engage in practice that respects the rights of litigants while providing better information to courts. In setting standards of conduct for mental health professionals, ethics codes help define how the “reasonable prudent professional” should practice. As such, these codes of ethics represent a major source of authority in the development of standards of practice for conducting FMHA.

Professional Ethics Providing Guidance for FMHA Practice

There are marked differences between the role of treating mental health professionals and that of forensic mental health experts. Among the areas in which conflicts may occur are those created by differences between these roles: identifying the “client,” the nature of the professional relationship with the client, the nature of confidentiality, demographics of the population of “clients” in forensic cases, competence of the expert, and trust in the client. These areas in which potential conflict and role dilemmas may arise have been discussed in detail during the last decade (Appelbaum, 1997; Appelbaum & Gutheil, 2007; Greenberg & Shuman, 1997; Goldstein, 2003a; Lipsitt, 2003; Rosner, 2003; Weissman & DeBow, 2003). Such conflicts and their ethical resolutions may be addressed either by the forensic mental health professional’s code of ethics or in other publications viewed as authoritative in the field. The representative areas of conflict described as follows are considered from the framework of the Ethical Principles of Psychologists and Code of Conduct (Ethics Code), the Specialty Guidelines for Forensic Psychologists (Specialty Guidelines), and the Ethics Guidelines for the Practice of Forensic Psychiatry (Ethics Guidelines).

Competence

The Ethics Code (2002a, Section 2.01) states that competence to practice within one’s boundaries of expertise includes a consideration of “education, training, supervised experience, consultation, study, or professional experience.” The Specialty Guidelines cautions that those practicing in the forensic arena should possess a “fundamental and (p. 66) reasonable level of knowledge and understanding of the legal and professional standards, which govern their participation as experts in the legal proceedings.” As such, forensic psychologists must understand the constitutional rights of those they are evaluating, applicable rules of evidence, the nature of expert testimony, and the relevant statutes and case law related to the psycholegal question under consideration. The Specialty Guidelines also recognizes that there are no generic experts. Specific expertise must be demonstrated for the particular legal competency in question, and practice should be limited to those legal areas and questions about which they “have specific knowledge, skill, experience, and education.” In addition, familiarity with such factors as the examinee’s “age, gender, gender identity, race, ethnicity, culture, national origin, religion, sexual orientation, disability, language, or socioeconomic level” is required, as well as competence in the techniques employed in conducting assessment (e.g., psychological tests and specialized forensic assessment instruments). Consistent with this, the Ethics Guidelines notes that expertise in the practice of forensic psychiatry should be claimed only in areas in which the psychiatrist has the requisite knowledge, skills, training, and experience. Areas that may require additional expertise, such as the evaluation of children or those from another culture, should not be claimed as areas of qualification unless the psychiatrist has particular expertise in the particular area as well.

Welfare of Others

The Ethics Code (Section 3.04) requires that all psychologists “take reasonable steps to avoid harming their patients/clients, students … and others with whom they work, and to minimize harm where it is foreseen and unavoidable.” Multiple relationships that might reasonably interfere with objectivity or effectiveness of professional performance must be avoided. The Specialty Guidelines elaborates on these and other potential problems:

  • Fee arrangements and prior relationships with parties in a case must be discussed in advance;

  • Cases must never be accepted on a contingency fee basis;

  • With the exception of a psychological practice in a small community or small hospital, the dual role of treating (p. 67) psychologist and forensic expert should be avoided; even within small communities or hospitals, such a dual role is to be avoided whenever possible;

  • Informed consent, when required, must be obtained, using language likely to be understood by the person to be evaluated;

  • When employed by an agency or organization, forensic psychologists should inform the examinee about the expert’s relationship to the agency, the probable uses of the information obtained, who will have access to the records, and who the client is (Monahan, 1980);

  • If an examinee is unable or unwilling to grant informed consent when it is required, the assessment should be postponed. The individual’s attorney should be consulted before further contact with the examinee is made.

The Ethics Guidelines does not have a specific section on the welfare of the individual being evaluated. However, some considerations in this area are addressed in the section on consent. It indicates that forensic psychiatrists should obtain the informed consent of the evaluee when “necessary and feasible,” and that individuals who are not able to give consent should be dealt with according to applicable jurisdictional law. It is clear that this section does not require informed consent for all forensic psychiatric evaluations; in certain instances (e.g., court-ordered evaluations), the psychiatrist should provide a notification of purpose but not seek either consent or assent. It precludes the evaluation of individuals not represented by counsel when the evaluation is not court-ordered and the individual is charged with, under investigation for, or being interrogated concerning criminal acts.

Confidentiality and Privacy

Although its breach is not a frequent source of ethics complaints (APA, 2005), confidentiality is the most often cited ethical concern of psychologists (Pope & Vetter, 1992). The Ethics Code (Section 4.01) indicates that psychologists “have a primary obligation and take reasonable precautions to protect confidential information … recognizing that the extent and limits of confidentiality may be regulated by (p. 68) law or established by institutional rules or professional or scientific relationship.” The limits of confidentiality must be discussed with clients, and only information relevant “to the purpose for which the communication is made [should be included]” (Section 4.04). Therefore, intrusions on the examinee’s right to privacy should be minimized. The code (Section 4.05) also cautions that psychologists “should disclose confidential information without the consent of the individual only as mandated by law, or where permitted by law for a valid purpose.”

The Specialty Guidelines emphasizes the need to avoid revealing information about an individual when such information is not directly relevant to the legal purpose of the evaluation. Specially, no information or statements provided by a defendant in a criminal case should be used to address any legal issue “except on the issue respecting mental condition on which the defendant has introduced testimony.” Forensic psychologists should report information only relevant to the legal issue for which they were retained, and for which the individual has provided informed consent. The following, more specific elaboration is provided in the Specialty Guidelines:

  • Anonymous sources of information as a basis for a forensic opinion should be avoided;

  • Unless court ordered, information should be disclosed only with appropriate consent;

  • All identifying data about an individual should be disguised in writing, teaching and supervision.

According to the Ethics Guidelines, respect for the individual’s right of privacy and the maintenance of confidentiality are major concerns in conducting forensic psychiatric evaluations. Confidentiality should be maintained to the extent possible under the legal circumstances. The anticipated limitations to confidentiality should not only be described to the evaluee, but to collateral sources as well.

Public Statements, Record Keeping, and Fees

The Ethics Code (Section 6.02) indicates that all psychologists are expected to “maintain confidentiality in creating, storing, accessing, transferring, and disposing of records under their control….” The (p. 69) APA Record Keeping Guidelines (2007) provides psychologists with a general framework regarding the maintenance and retention of records, both written and electronic. These aspiration guidelines are meant to assist psychologists in making decisions concerning how detailed records should be, how long records should be maintained and how to dispose of them, and on related questions involving confidentiality and security. (These issues are also addressed by the Ethics Code and the Specialty Guidelines). This document emphasizes the aspirational intent of these guidelines, and decisions about these issues are left to psychologists, who “should be familiar with legal and ethical requirements for record keeping in their specific professional contexts and jurisdictions” (p. 993). As such, jurisdictional laws supersede these guidelines. Some contexts require more detailed record keeping, and the psychologist should balance “client care with legal and ethical requirements and risks” (p. 995). Work performed in a psycholegal context calls for more detailed records because of the expectation that the results of the FMHA will be used in legal proceedings, and the records relied upon to explain and support the opinions reached by the psychologist. Records in forensic contexts may also be relevant at a future time, unrelated to the initial reason for the referral. For example, an evaluee in a criminal case may win an appeal and be granted a new trial, in which records and testimony are again needed.

The Record Keeping Guidelines addresses three conflicts that frequently arise when psychologists are employed by or conduct FMHA for agencies and other organizations. Issues may be related to the policies of the organization versus the ethics of the profession, who “owns” the records, and who has access to these documents. In each of these instances, the guidelines suggest that psychologists attempt to resolve these conflicts and, if unsuccessful, strive to follow the Ethics Code and the Record Keeping Guidelines. The guidelines recommend that psychologists consider maintaining all records “until seven years after the last date of service for adults or until three years after a minor reaches the age of majority, whichever is last” (p. 999). Consistent with the guidelines’ contextual perspective, we recommend that in forensic contexts, psychologists should consider retaining full records for a longer period of time.

(p. 70) The Specialty Guidelines notes that forensic evaluations have a higher standard for documentation than do clinical assessments and treatment. Forensic psychology requires “the best documentation possible,” as those in forensic mental health practice should anticipate that their work might be used in litigation. When conducting FMHA, therefore, detailed notes should be taken during interviews and relied upon in forming opinions, writing reports, and offering expert testimony. These records document the substance of the interviews and provide the data upon which opinions are based. The Specialty Guidelines also indicates that forensic psychologists should avoid offering out of court statements to third parties, including the media, unless “there is a strong justification to do so.” Such statements may unnecessarily infringe on an examinee’s privacy. Unless an evaluator is authorized to speak about a case outside the context of the standard communication associated with that case (e.g., report, deposition, expert testimony), then Ethics Code standards and the guidelines contained in the Specialty Guidelines regarding confidentiality may be violated. In addition, out of court statements can serve as a basis for cross-examination, and may raise questions about the forensic mental health expert’s credibility.

Although public statements are not addressed directly by the Ethics Guidelines, there is the continuing assumption that the forensic psychiatrist will maintain confidence of relevant information except as dictated by the legal context of the evaluation. In addition, the evaluee could consent to the release of such information in a public way, but this would necessitate fully informed consent. Of course, this would not preclude public statements being made in such a way as to avoid revealing case-specific information. For instance, a forensic psychiatrist involved in a high profile case in which the defendant asserted an insanity defense might comment on the insanity defense, its purpose and how it was evaluated, and how individuals acquitted by reason of insanity are treated—but decline to provide information or opinions regarding the defendant that he has evaluated in this particular case.

Assessment

Section 9.01 of the Ethics Code advises all psychologists that “forensic testimony [must rely] on information and techniques sufficient to substantiate their findings.” Opinions should be offered only when (p. 71) there has been an examination of the individual “adequate to support their statements or conclusions.” If it is not possible to conduct a face-to-face interview with the litigant, records should document the efforts made to schedule such a session and “clarify the probable impact of their limited information on the reliability and validity of their opinions, and appropriately limit the nature and extent of their conclusions or recommendations.”

Testing data frequently serve as an additional source of information upon which FMHA opinions are based. The Ethics Code (Section 9.02) requires that all psychologists use testing instruments “in a manner and for the purposes that are appropriate in light of the research.” Test instruments should have reliability and validity that “have been established for use with members of the population being tested.” If reliability and validity have not been established for a specific population or cultural group, the psychologist must describe the strengths and limitations of the results obtained. Similarly, testing should be conducted in language appropriate for the individual’s “language preference and competence, unless the use of an alternative language is relevant to the assessment issue.” For example, in the context of a forensic assessment to evaluate a defendant’s competence to waive Miranda rights, English may be the appropriate language to use with the examinee if the rights were read to or by the defendant in English.

Raw testing data (e.g., actual test stimuli and questions, test manuals, the examinee’s answers, and test scores) may be misused by non-psychologists. Consequently, both the Ethics Code and the Specialty Guidelines contain cautions about the release of raw data to those who are not trained to interpret them. The Ethics Code (Section 9.04) states that raw test data are released “only as required by law or court order” in the absence of a signed release by the examinee. In addition, all psychologists make reasonable efforts to maintain test integrity and security, consistent with the law’s requirements.

The Specialty Guidelines indicates that the disclosure of information to non-psychologists based upon psychological testing is made only when every effort has been taken “to ensure that test security has been maintained and access to information is restricted to individuals (p. 72) with a legitimate and professional interest in the data.” When such information is sent to non-psychologists, the Specialty Guidelines advises “the forensic psychologist [to take] … reasonable steps to ensure that the receiving party is informed that raw scores must be interpreted by a qualified professional in order to provide reliable and valid information.”

Many objective personality tests, such as the MMPI-2, the MCMI-III and the PAI, can be computer-scored and interpreted. In selecting scoring services to perform this function, the Specialty Guidelines states that services should be selected “on the basis of evidence of validity of the program and procedures.” Although these tests may be scored and independently interpreted, forensic psychologists continue to “retain responsibility for the appropriate application, interpretation, and use of assessment instruments.” The ultimate responsibility for test security, knowledge about the test, correct administration and scoring, and interpretation rests with the psychologist. Scores and test interpretations printed from a computer program are not a substitute for specific knowledge about and correct use of a test.

The question of the importance of a personal interview is addressed by the Ethics Guidelines. Honesty, objectivity, and the adequacy of the clinical evaluation, it is noted, may be questioned if the expert offers an opinion without a personal examination. Some evaluations, such as record reviews, do not require such personal contacts. In other instances, if it is not feasible to conduct a personal examination (but there has been reasonable effort to do so), the psychiatrist may render an opinion based on other information. When doing so, however, the psychiatrist must both observe that no personal examination was conducted and note any limitations that may have resulted from the absence of such an interview.

Ultimate Opinion Testimony

The Ethics Code indicates that psychologists:

  • Should provide services only within their boundaries of expertise (Section 2.01),

  • Offer statements or opinions only when there are sufficient data to support their findings (Section 9.01), (p. 73)

  • Use assessment techniques only for those “purposes that are appropriate in light of the research on or evidence of the usefulness and proper application of the techniques” (Section 9.02).

An examination of these standards, when applied to FMHA, provides some support for the argument against the forensic psychologist’s answering the ultimate legal question. If the focus of the FMHA is on the functional legal criteria, then psychologists can restrict their assessment to domains that are scientific and clinical—and avoid the political, moral, and community value-laden influences that invariably affect the determination of the legal issue. Psychologists do not have particular expertise in values, as they do in scientific and clinical aspects of mental health, and so should not count values as part of their “forensic expertise.” Nor should they allow attorneys to broaden the scope of their opinion (to include the ultimate legal issue) if they do not consider this as part of their opinion. In fairness, however, it should be added that Section 2.01 certainly does not make it clear that ultimate issue conclusions and testimony are to be avoided. What the forensic psychologist guided by the Ethics Code must consider is whether she regards ultimate issue conclusions as within her boundaries of expertise—and whether she has “sufficient data” to support her findings and conclusion on this issue.

Are FMHA techniques appropriate for answering the ultimate legal question? Consider the relevant research or evidence for proper application and usefulness of these techniques. It is noteworthy that many of the specialized forensic assessment instruments (see Grisso, 1986, 2003) have been developed and validated using functional legal criteria (e.g., understanding of charges and capacity to assist counsel) rather than ultimate legal issues (e.g., competence to stand trial). But it is also true that in some jurisdictions, the failure to provide such an answer would result in the exclusion of the FMHA entirely. Much of the argument against providing an ultimate legal opinion is eliminated if the forensic clinician is thorough, provides data clearly, and describes the reasoning link between such data and conclusions. This is described more clearly in the Specialty Guidelines.

(p. 74) The Specialty Guidelines indicates that forensic psychologists should communicate “in ways that will promote understanding and avoid deception.” Presenting an ultimate opinion in a report or testimony has the potential to misrepresent or over-interpret the results of FMHA, thereby violating this caution. In addition, the Specialty Guidelines indicates that forensic psychologists:

  • Must present their findings “in a manner consistent with professional and legal standards,”

  • Have, in their public statements, “a special responsibility for fairness and accuracy,” and

  • In offering expert evidence, must be “aware that their own professional observations, inferences and conclusions must be distinguished from legal facts, opinions and conclusions.”

The Ethics Guidelines does not address the question of ultimate legal opinions. In the section on honesty and striving for objectivity, however, it does indicate that forensic psychiatrists should distinguish, as much as possible, between verified and unverified information, and among clinical “facts,” “inferences,” and “impressions.” Perhaps the most straightforward way to distinguish clinical facts and inferences from moral values is to refrain from answering the ultimate legal question as part of the FMHA. But there is consensus that the forensic clinician should carefully separate data, reasoning, and conclusions in this process. If this is done, then it is less important whether the ultimate legal question is answered.

Professional Ethics Affecting the Regulation of FMHA Practice

Codes of ethics and specialized forensic guidelines have an indirect influence on regulating the practice of forensic mental health professionals. Although ethics codes have no legal authority, violations of such ethical standards can result in referrals to state ethics committees or boards of psychology. Adjudication by the licensing board can result in suspension or loss of license under applicable administrative law.

Ethics codes identify the competency requirements to practice in specific forensic areas and the ways in which expertise is identified. (p. 75) Other documents, such as the Specialty Guidelines, describe the extent of knowledge an expert should possess in order to practice ethically (“a fundamental and reasonable degree of knowledge” of the legal system, statutes and case law that influence FMHA, rules of evidence, and the legal rights of individuals who are evaluated). In addition to defining the boundaries of practice, codes of ethics require forensic mental health practitioners to be well versed in the tests and instruments they use in gathering forensic data, and the applicability of those measures to the litigant. Violations of these and other ethical principles do not result in loss of licensure. However, some states and provinces have adopted ethics codes as part of their own regulatory requirements. These bodies have the authority to legally regulate the practice of FMHA through requiring supervision, restricting practice, or suspending or eliminating licensure.

Professional Practice Contributing to Best-Practice Standards

Centers for specialized training (e.g., the Institute of Law, Psychiatry, and Public Policy, University of Virginia; the Center for Forensic Psychiatry, Ypsilanti, Michigan; Federal Bureau of Prisons, Springfield, Missouri; University of Massachusetts Medical School, Worcester, Massachusetts) and recognized board certification organizations, combined with the professional practice literature, serve as a fourth source of authority when addressing the components of best-practice standards. Each of these will be discussed in this section.

Professional Organizations Guiding FMHA Practice

Ethics codes promulgated by the American Psychological Association and the American Psychiatric Association establish broad principles regarding competence in a specific area of practice. Professional organizations help define, albeit generally, the minimum requirements for specialization. The Specialty Guidelines applies these broader principles to the more specific practice of FMHA. Although professional organizations cannot remove a mental health professional’s license to practice, those conducting FMHA “are answerable to their professional organization (as well as to state boards in which (p. 76) they hold licenses) for complaints of ethical misconduct” (Goldstein, 2003b, p. 6).

The substantial growth in professional organizations that focus on the intersection of the law and psychology, such as the American Psychology-Law Society (AP-LS), the American Board of Forensic Psychology, and American Academy of Psychiatry and Law, has contributed to the development and dissemination of forensic research, scientific knowledge, ethics, and practice expertise. Several commentators (e.g., Heilbrun et al., in press; Otto & Heilbrun, 2002) have suggested that formal practice guidelines provided by professional organizations can make an important contribution to establishing a standard of practice. Consistent with this, Wettstein (2005), in a discussion on improving the quality of forensic evaluations, calls for establishing quality guidelines and standards, which can then be applied through peer review, continuing education, and cross-examination in testimony regarding the expert’s participation in such activities.

Practice Guidelines for Forensic Sub-Specialties

With new areas for FMHA emerging and the practice of forensic psychology and psychiatry expanding (Goldstein, 2007), professional organizations will need to provide ethical and practice guidelines for forensic sub-specialties. Some important steps have already been taken in this regard. The American Academy of Psychiatry and Law is currently working to develop practice guidelines for evaluations on different legal questions. Published guidelines to date include those on sanity at the time of the offense (American Academy of Psychiatry and Law, 2002) and competence to stand trial (Mossman et al., 2007).

The American Academy of Child and Adolescent Psychiatry has also published a series of “practice parameters” for psychiatric evaluation in various areas. These include the assessment of child custody (1997), possible physical or sexual abuse (1997), conduct disorder (1997), posttraumatic stress disorder (1998), and sexual abuse of others (1999),

Some direction has also been provided by other American Psychological Association divisions through the development of guidelines for the use of personnel selection procedures (Society for Industrial and Organizational Psychology, 2003), the provision of (p. 77) services to those with developmental disabilities and mental retardation (www.apa.org/divisions/div33/effectivetreatment.html), and by the American Psychological Association itself on multicultural education, research, and practice (American Psychological Association, 2002b). In addition, the Guidelines for Child Custody Evaluations in Divorce Proceedings (APA, 1994) and the Guidelines for Psychological Evaluations in Child Protection Matters (APA, 1999) are relevant to the forensic assessment of children and adolescents in these areas. The revision of the 1991 Specialty Guidelines for Forensic Psychologists is well underway at the time this is being written, and should be published in the American Psychologist when it is complete.

Finally, the Association of Family and Conciliation Courts (undated, later 2006) has disseminated model standards of practice for child custody evaluations. It is thus apparent that both psychiatry and psychology have been active in the development of aspirational descriptions of the practice of various aspects of forensic mental health assessment during the last two decades, particularly during the 1997–2007 decade. The details of these various guidelines will be covered in the books in this series on each of the respective topics. However, it is important to note that there have been ongoing efforts to develop and refine these guidelines made by different professional organizations, reflecting their views on aspirational practice.

Centers for Specialized Training Guiding FMHA Practice

One way to examine the elements that contribute to FMHA is to consider what is taught to those seeking to become experts or to those looking to expand their practice into relatively new areas. The common ground across various programs can help inform the development of a best-practice standard. Training in FMHA occurs at a number of levels. These include graduate programs, internships, postdoctoral fellowships, and continuing professional education.

Graduate Programs

As of July 2007, ten universities and colleges offered Master of Arts degrees in forensic psychology, according to the AP-LS website (www.ap-ls.org). At the doctoral level, almost all of the 17 universities (p. 78) providing doctoral-level specialty training in forensic psychology do so with a “forensic concentration” as part of a doctoral program in clinical or counseling psychology. In addition, a number of programs offer joint degrees in law (J.D.) and psychology (Ph.D. or Psy.D.), and may provide training in forensic psychology as part of this interdisciplinary work. (The AP-LS website is updated on a regular basis, so the reader should consult this website for a current listing.)

Universities resist offering doctoral degrees in forensic psychology because of limitations imposed on potential practitioners by state or provincial licensing laws. (Other reasons for declining to offer doctoral degrees in forensic psychology include the potential for premature specialization and the current disinclination of the American Psychological Association to accredit applied doctoral training programs in areas other than clinical, counseling, and school psychology.) Specifically, laws that regulate the practice of psychology are written to address the training and course requirements of clinical or counseling psychologists. A range of clinical psychology courses is required to meet licensure regulations—because of the large number of specific clinical courses needed to sit for the licensing examination, students who might otherwise enroll in a “purely” forensic program could not meet a jurisdiction’s licensing requirements.

An examination of the core forensic course curriculum and course syllabi of doctoral and joint degree programs could serve as a source of authority as to what constitutes a best-practice standard in FMHA.

Levels of Specialty Training

Three levels of specialty training of forensic mental health practitioners were delineated at the National Invitational Conference on Education and Training in Law and Psychology, held at the Villanova Law School in 1995 (Bersoff, Goodman-Delahunty, Grisso, Hans, Poythress, & Roesch, 1997). The first level of training, the legally informed clinician, requires that psychologists receive basic legal education and some forensic content in doctoral-level clinical courses, particularly those focusing on assessment and ethics. It has been reasoned that “all clinicians, not only those who specialize in forensic psychology, need to be aware of certain aspects of the law that may impact their practice” (Packer & Borum, 2003, p. 25).

(p. 79) At the intermediate level, proficiency in forensic psychology, are those who have received training at “general professional programs, with an emphasis on forensics” (Bersoff et al., 1999, p. 1309). For those who already hold doctoral degrees, training could occur in postdoctoral programs or through continuing education offerings. At this level, in addition to course work, there would be a requirement for supervised experience in forensic settings such as jails, forensic hospitals, or court clinics. Training in presenting expert testimony and consulting with attorneys would be offered, and graduate students would typically be expected to complete dissertations on forensic topics. Packer and Borum (2003) observed that the goal of training at this level is to establish competency in one or more areas of forensic practice as a supplement to traditional clinical work.

At the highest level—specialization in forensic psychology—the training involves completing a program “dedicated to producing forensic psychologists … [through] an integrated, carefully developed sequence of training with an identifiable, experienced forensic faculty with recognized credentials” (Bersoff, et al., 1999, p. 1306). This level of training includes didactic training with a detailed study of law, and intensive supervised experience in evaluating a variety of psycholegal issues involving litigants from diverse backgrounds (Packer & Borum, 2003). It would be expected that those trained at this level would ultimately complete a postdoctoral fellowship and earn American Board of Professional Psychology (ABPP) board certification in forensic psychology. This is not to imply that others, trained at a non-specialist level, could not attain ABPP board certification in forensic psychology. However, it is likely that additional training and supervised experience would be needed if someone trained at the legally informed or proficiency levels sought such board certification.

Internships and Postdoctoral Fellowships

Doctoral internships offer a route for graduate students to acquire specific knowledge and training in FMHA. Internship training in FMHA may occur in prison settings, forensic hospitals, court clinics, or other clinical settings in which this kind of assessment is conducted. An analysis of what is taught in such settings, including the (p. 80) methodology used to conduct specific FMHA, may shed light on a best-practice standard for FMHA.

Training in FMHA for those who have completed a doctorate in psychology usually occurs via postdoctoral fellowships or as the result of participating in continuing education programs offered by an APA-approved sponsor. A limited number (approximately 11) of postdoctoral fellowships in forensic psychology exist (Packer & Borum, 2003). Typically such programs involve a single year of training, with some offering a second year. Packer and Borum (2003) present a sample curriculum for a postdoctoral fellowship in forensic psychology, discussing the texts and substance that postdoctoral fellows typically learn during a training year. For psychiatrists seeking to obtain specialty training in forensic psychiatry, there are a number of forensic fellowships available in the United States (see www.aapl.com). The path to forensic specialization in forensic psychiatry also includes board certification through the American Board of Psychiatry and Neurology (“with Added Qualifications in Forensic Psychiatry”).

Continuing Education Programs

There are many continuing education programs dedicated to presenting relevant research, case law, ethics, and methods to mental health professionals. These include seminars presented by the American Psychology-Law Society and the American Academy of Forensic Psychology (AAFP). AAFP, an affiliate of the American Board of Forensic Psychology (ABFP), has been an APA-approved sponsor for over 25 years. Typically, a series of workshops is presented at a specific location in the United States and Canada six or seven times a year, most taught by individuals who are either board certified in forensic psychology (ABPP), or not board certified but nonetheless recognized experts in specific areas of forensic research or practice. The content of these presentations and an analysis of the workshop materials can serve to inform a best-practice standard, which could incorporate the books and other materials used in this series (many of which are authored or coauthored by AAFP workshop presenters). In forensic psychiatry, the American Academy of Psychiatry and the Law offers a three-day intensive training course specifically for individuals (p. 81) (already board certified in general psychiatry) who seek subspecialty board certification in forensic psychiatry. This training includes case law, ethics, research, and practice literature that are all directly relevant to the practice of forensic psychiatry at a highly specialized level.

Board Certification Guiding FMHA Practice

The American Board of Professional Psychology confers board certification in forensic psychology on those who meet the credentialing requirements of its member board, the American Board of Forensic Psychology. ABPP, established in 1947, is the oldest and most rigorous of the organizations offering board certification in forensic psychology; it also provides certification in 12 other specialties in applied psychology (Marczyk, DeMatteo, Kutinsky, & Heilbrun, 2007). Successful candidates for forensic board certification must possess an earned doctoral degree from an APA-approved program (or one that meets APA criteria), maintain an active license as a psychologist, and have completed a minimum of 100 hours of APAapproved continuing education and face-to-face supervision in forensic psychology as well as 1,000 hours of experience in forensic psychology obtained over a five-year period.

Case law and recommended readings that applicants should know for both the written and oral examinations are found on the ABFP website (www.abfp.com). A review of the texts, chapters, published research, and case law appearing there reflects the core body of knowledge required of those who would demonstrate a high degree of specialization in forensic psychology in seeking to satisfy ABPP standards for forensic psychology board certification. Much of the work cited in this book (e.g., Goldstein, 2003a; Grisso, 2003; Heilbrun, 2001; Melton, Petrila, Poythress & Slobogin, 2007) also appears on this recommended list. This set of readings reflects sources of authority in the field that are relevant for an FMHA best-practice standard, as applicants are examined in areas including law, ethics, testing and assessment, individual rights and liberties, juvenile and family law, personal injury and other civil assessments, criminal competencies, and criminal responsibility.

The American Board of Psychiatry and Neurology awards “Certification in the Subspecialty of Forensic Psychiatry” to psychiatrists (p. 82) who meet rigorous qualification and examination criteria. Applicants must first become board certified from ABPN in general psychiatry. Effective 2001, applicants must also have completed an approved one-year fellowship in forensic psychiatry. Successful candidates must also pass an examination covering areas including the legal regulation of psychiatry, criminal law, civil law, methodology, risk assessment, diagnosis and treatment, and forensic psychiatry practice. In addition to a review course offered by the American Academy of Psychiatry and the Law, a list of required case law is provided for those interested in pursuing forensic psychiatry subspecialty certification (see www.aapl.org). The information presented at AAPL workshops, topics covered by the written examination, and the case law listed on the website contribute to the development of a standard for best practice in FMHA for forensic psychiatrists.

Conclusion

The major sources of authority contributing to the practice of forensic psychology and forensic psychiatry have been considered in this chapter. Law, ethics, science, and professional practice constitute the broad domains into which these sources fall. Although there are certainly disciplinary differences between psychology and psychiatry that are reflected in how these two professions conceptualize, train, and practice in their respective forensic specializations, the common ground appears to greatly outweigh disciplinary differences. One important source of authority—practice literature describing principles, guidelines, and maxims—was discussed only briefly in this chapter. It is to these sources that we will turn our attention in the next chapter.