Ethics in Forensic Psychology Practice

Randy K. Otto, Alan M. Goldstein, Kirk Heilbrun

• Publisher: Wiley
• Year: 2017
• ISBN:
  9781118712030
• Edition: 1
• Topic: Psicologia
• Subtopic: Psicologia forense

AN AUTHORITATIVE GUIDE TO THE CURRENT SPECIALTY GUIDELINES FOR FORENSIC PSYCHOLOGY

Ethics in Forensic Psychology Practice is a comprehensive and authoritative resource that addresses major concerns of professionals who conduct evaluations, provide treatment, carry out research, as well as a guide for those who teach and train in diverse legal contexts. Including on the American Psychological Association's current Specialty Guidelines for Forensic Psychology, the standard measure for ethical and legal conduct, this important volume is organized around substantive practice issues that cut across various functions and roles. The authors include a range of topics such as training, business practices, roles, privacy, confidentiality, report writing, testifying, and more.

CHAPTER 1
Introduction

Psychologists' early contact with the legal system can be traced back to the early 20th century when Hugo Munsterberg, in On the Witness Stand: Essays on Psychology and Crime (1908), made many proposals about what psychology had to offer the law. Around this same time, other psychologists began evaluating wayward youth and testifying about their specific needs in the newly developed juvenile courts (Otto & Heilbrun, 2002; Travis, 1908). But it has only been within the past half century that forensic psychology has come into its own as a specialty. In 1969, the American Psychology-Law Society—an interdisciplinary group of professionals who shared an interest in the intersection of psychology and law—was formed (Crocker & Kovera, 2010). In 1978, with a $1000 grant from that society, the American Board of Forensic Psychology was established (Kaslow, 1989). The mission of the American Board of Forensic Psychology was and remains to certify psychologists who are competent to provide forensic services. In 1991, the Specialty Guidelines for Forensic Psychologists were published by the American Psychology-Law Society (Committee on Ethical Guidelines for Forensic Psychology, 1991); they were revised and approved by the Council of Representatives of the American Psychological Association (APA) in 2012 (APA, 2013b). In 2001, the APA recognized forensic psychology as an applied specialty.

Overview and Context

Forensic psychology has long been dominated by the evaluation of litigants in civil and criminal proceedings. Considerably less attention has been paid to specialized treatment of forensic populations. Nonetheless, the primary activities of forensic psychologists involve assessment and treatment — much like their counterparts in more traditional therapeutic settings, such as hospitals, clinics, community mental health centers, and private offices. But the differences between practicing in forensic and therapeutic settings are considerable and have been documented by many (see, e.g., Appelbaum & Gutheil, 2007; Greenberg & Shuman, 1997; Heilbrun, Grisso, & Goldstein, 2009; Heilbrun, DeMatteo, Marczyk, & Goldstein, 2008; Lipsitt, 2007; Martindale & Gould, 2013; Melton, Petrila, Poythress, Slobogin, Lyons, & Otto, 2007; Weissman & DeBow, 2003). As summarized in Table 1.1, there are a number of dimensions on which therapeutic, forensic examination, and forensic treatment roles can be compared. These include the identified client and service recipient, the decision maker on aspects of service provision, the goals of service, the psychologist's role as it affects interactions with the service recipient, the nature of privacy matters such as confidentiality and privilege, the kinds of information that are typically accessed and relied on, and the value of diagnosis and psychological testing.¹

TABLE 1.1 Therapeutic, Forensic Examination, and Forensic Treatment Roles in Professional Psychology: Comparing Relevant Dimensions

	Therapeutic Role	Forensic Examination Role	Forensic Treatment Role
Client	Service recipient	Referral source	Service recipient (and sometimes referral source)
Decision maker	Service recipient	Examiner and referral source	Service recipient (and sometimes referral source)
Goals of service	Improve client's functioning	Provide information to referral source about examinee's functioning as it relates to a legal issue	Improve service recipient's functioning as it relates to a legally relevant capacity, issue or mandate
Psychologist's role	Aligned as advocate	Neutral	Aligned as advocate
Psychologist's obligation	Assist therapy client	Provide information to referral source about examinee's functioning as it relates to a legal issue	Assist service recipient and provide information to referral source
Confidentiality	Traditional psychologist–client confidentiality	None if court ordered; Limited under some circumstances in a retained case	More limited than traditional psychologist–client confidentiality
Privilege	Traditional psychotherapist–patient privilege	Attorney-client privilege in some retained cases	More limited than traditional psychotherapist–patient privilege
Sources of information	Client (with perhaps limited reliance on collateral data and informants)	Examinee (with considerable reliance on collateral data and informants)	Service recipient (with considerable reliance on collateral data and informants)
Importance of diagnosis	Significant insofar as it directs treatment decision making	Limited (depending on legal question)	Significant insofar as it directs treatment decision making
Utility of traditional psychological assessment tools	Significant insofar as it informs diagnostic formulation	Limited, with greater reliance on assessment tools designed for forensic assessment contexts	Significant insofar as it informs diagnostic formulation

Most sources of authority that impact the work of psychologists focus on the provision of services in therapeutic settings. There are a few exceptions (e.g., the Specialty Guidelines for Forensic Psychology, APA, 2013b; the Guidelines for Psychological Evaluation in Child Protection Matters, APA, 2013c), but most of the influences on psychological practice (e.g., state practice acts, federal laws such as the 1996 Health Insurance Portability and Accountability Act [HIPAA], and ethical principles and practice guidelines promulgated by professional organizations) focus on the activities of psychologists when providing therapeutic services. This emphasis and the resulting neglect of the differences between forensic and therapeutic activities in these documents pose a challenge for psychologists practicing in forensic settings. This challenge is the basis for this book.

Some Preliminary Matters

As we begin, we think it important to address a number of overarching and foundational issues. These will recur in discussion throughout the remaining chapters.

Challenging Forensic Psychology's Historical Emphasis on Assessment and Neglect of Treatment

Forensic psychology's identity began with assessment in legal settings. A quick review of the table of contents of mainstream interdisciplinary journals such as Law and Human Behavior, Behavioral Sciences & the Law, and Criminal Justice and Behavior makes it clear that this is still true. But there appears to have been a general shift in thinking about this matter over the last two decades. Perhaps most reflective of this change are differences between the 1991 version of the Specialty Guidelines for Forensic Psychologists (Committee on Specialty Guidelines, 1991) and the revised Specialty Guidelines for Forensic Psychology (APA, 2013b). Whereas the 1991 forensic practice guidelines do not address treatment in any meaningful way, guideline 4.02.03 of the revised guidelines explicitly discuss “forensic treatment” and how it can be distinguished from treatment of a client whose involvement in litigation bears no relationship to the treatment itself.

Although some therapeutic services can be considered forensic in nature, the fact that therapeutic services are ordered by the court does not necessarily make them forensic.

In determining whether a therapeutic service should be considered the practice of forensic psychology, psychologists are encouraged to consider the potential impact of the legal context on treatment, the potential for treatment to impact the psycholegal issues involved in the case, and whether another reasonable psychologist in a similar position would consider the service to be forensic and these Guidelines to be applicable.

Although most of our discussion in this book addresses ethical matters encountered when conducting forensic psychological evaluations, we will, at times, consider treatment issues as well.

Distinguishing Ethics from Good Practice and from the Law

This is not a book about how to conduct forensic psychological evaluations or provide treatment to different forensic populations. There are other resources for that (e.g., Melton et al., 2007; Weiner & Otto, 2014; also see the many titles in the Oxford University Press series Best Practice...