CPLEE - Forensic Issues

forensic psychology refers to professional practice by any psychologist working within any sub-discipline of psychology (e.g., clinical, developmental, social, cognitive) when applying the scientific, technical, or specialized knowledge of psychology to the law to assist in addressing legal, contractual, and administrative matters.

An expert witness is a person “who has special training, knowledge, skill, or experience in an area relevant to resolution of the legal dispute and who is allowed to offer an opinion as testimony in court

A fact witness is a person “who testifies as to what he/she has seen, heard, or otherwise observed regarding a circumstance, event, or occurrence as it actually took place ... Fact witnesses are generally not allowed to offer opinion, address issues that they do not have personal knowledge of or respond to hypothetical situations.

A fact witness may provide information about a client in a legal proceeding only with the consent of the client or a court order.

testimonial privilege may be waived by the client and does not apply in certain legally defined situations. For example, there is no psychotherapist-patient privilege in a proceeding in which a patient’s emotional condition has been raised as an issue by the patient or the patient’s representative. In some circumstances, there is no privilege when a psychotherapist has been appointed by the court to evaluate a patient to help the court determine if the defendant is competent to stand trial or ascertain the defendant’s state of mind (“sanity”) at the time of the crime.

Recognize ethical obligations to maintain the confidentiality of information relating to a client or retaining party, except insofar as disclosure is consented to by the client or retaining party or required or permitted by law.

When an individual is ordered to undergo treatment, but the goals of treatment are determined by a legal authority rather than the individual receiving services, the forensic practitioner informs the service recipient of the nature and purpose of treatment, and any limitations on confidentiality and privilege.

Forensic practitioners using case materials for purposes of teaching, training, or research strive to present such information in a fair, balanced, and respectful manner. They attempt to protect the privacy of persons by disguising the confidential, personally identifiable information of all persons and entities who would reasonably claim a privacy interest; using only those aspects of the case available in the public domain; or obtaining consent from the relevant clients, parties, participants, and organizations to use the materials for such purposes.

when psychological services are court ordered or otherwise mandated, psychologists inform the individual of the nature of the anticipated services, including whether the services are court-ordered or mandated and any limits of confidentiality, before proceeding.” For example, psychologists are ordinarily asked to inform the court whether or not a client has attended court-ordered therapy sessions and to provide the court with progress reports. In most circumstances, the client must have signed a release before the psychologist may do so.

strive to inform service recipients about the nature and parameters of the services to be provided” (Paragraph 6) and to do so “as soon as is feasible” (Paragraph 6.01). Unless court ordered, psychologists obtain the informed consent of the examinee before proceeding with a forensic examination. If the examinee is unwilling to proceed after being informed of the nature and purpose of the examination, the psychologist “may consider postponing the examination, advising the examinee to contact his or her attorney, and notifying the retaining party about the examinee’s unwillingness to proceed

When a person is ordered or mandated to participate in an examination or treatment, a psychologist “can conduct the examination over the objection, and without the consent, of the examinee... If the examinee declines to proceed after being notified of the nature and purpose of the forensic examination, the forensic practitioner may consider a variety of options including postponing the examination, advising the examinee to contact his or her attorney, and notifying the retaining party about the examinee’s unwillingness to proceed” (Paragraph 6.03.02). Finally, when a person is lacking the capacity to give informed consent, a psychologist “provides an appropriate explanation, seeks the examinee’s assent, and obtains appropriate permission from a legally authorized person, as permitted or required by law”

Insanity is a legal concept, and most legal definitions reflect the rule set forth by the American Law Institute, which states that a person is not guilty by reason of insanity (i.e., is not responsible for the alleged act) when, because of a mental disease or defect, “that person lacks substantial capacity to appreciate the wrongfulness of the act or lacks substantial capacity to behave according to the requirements of the law”

In any criminal proceeding, including any juvenile court proceeding, in which a plea of not guilty by reason of insanity is entered, this defense shall be found by the trier of fact only when the accused person proves by a preponderance of the evidence that he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense.

this defense shall not be found by the trier of fact solely on the basis of a personality or adjustment disorder, a seizure disorder, or an addiction to, or abuse of, intoxicating substances.

The first step in responding to a subpoena is to determine if it is a legally valid demand. The subpoena might not be valid, for instance, because the court does not have jurisdiction over the psychologist or because the subpoena was improperly served.

If the subpoena is valid, a formal response will be required, but the psychologist should first contact the client to discuss the implications of providing the requested information. If the client consents to disclosure and there are no reasons for withholding the information (e.g., to protect the client’s welfare or test security), the psychologist should provide the requested information. If the client does not consent, the psychologist or their attorney can attempt to negotiate with the party who issued the subpoena. If the requesting party continues to demand that the information be provided, the psychologist can seek guidance from the court informally through a letter or have their attorney file a motion to quash the subpoena or a motion for a protective order.

When a request for confidential information arises for the first-time during court testimony or at a deposition, the psychologist should claim the privilege on the client’s behalf and refuse to provide the information until ordered by the court to do so.

When the court issues an order to provide testimony or produce documents and attempts to have the order modified or vacated have been unsuccessful, the psychologist must comply with the order to avoid being held in contempt of court. To be consistent with ethical guidelines, a psychologist should release to the court only information that is relevant to the case and present the subpoenaed records to the court in a sealed envelope marked “confidential.” It is illegal to destroy or tamper with records for the purpose of avoiding disclosure.

Malpractice cases are civil suits that require the plaintiff (client) to prove their claim by a “preponderance of the evidence.” This means that the plaintiff must establish that there is a standard of care and that the psychologist deviated from it. Often, this involves testimony from expert witnesses, but in some cases the standard of care is derived from legal statutes, articles in professional journals, or third-party payors such as private, state, and federal insurance companies.

four conditions must be met: First, the psychologist had a professional relationship with the person that established a legal duty of care. Second, there is a demonstrable standard of care that the psychologist breached. Third, the person suffered harm or injury. Fourth, the psychologist’s breach of duty within the context of the standard of care was the proximate cause of the person’s harm or injury.

Damages awarded to plaintiffs in malpractice suits are of three types: (a) The award of compensatory damages is based on the assumption that a plaintiff should be restored to their pre-harm condition. Compensatory damages include payments for past and future work losses, medical care, and physical and mental pain and suffering. (b) Nominal damages are awarded when harm has technically occurred but cannot be translated into monetary terms. (c) Punitive damages are awarded to penalize the psychologist and are usually awarded only when the psychologist has clearly acted in a reckless, malicious, or willful manner.

The experts have offered several guidelines for reducing the risk for a charge of malpractice. Most important are being familiar with all relevant legal and ethical standards and maintaining detailed, well-organized records. With regard to the latter, the experts generally agree that the best defense in cases of litigation is adequate records

Answer 2 is the best response of those given. A subpoena legally requires a psychologist to appear at a designated time at a deposition or trial. When the client invokes the privilege (does not give permission for the release of confidential information), the subpoena is still valid. However, a psychologist should contact the client’s attorney or their own attorney to discuss the matter or contact the attorney who issued the subpoena to request to be released from it. Unless the psychologist receives the requested release, they must appear as requested but should claim the privilege on the client’s behalf.

Familiarity with the four conditions for a claim of malpractice would have enabled you to recognize that answer 3 is correct because it addresses the third and fourth conditions. Answer 1 is incorrect because the psychologist’s behaviors must have actually led to harm; answer 2 is incorrect because a psychologist does not have to knowingly or deliberately act in a way that led to harm; and answer 4 does not describe a condition for a malpractice claim.