Clinicians use psychological testing to reinforce data gathered throughout the assessment process. In the forensic setting, psychological evaluations determine competency to stand trial, the possibility of malingering, child custody, and other issues regarding civil, criminal, and family law (Ewing, 1996). Due to the circumstances encompassing the need for psychological tests, it is vital that forensic professionals are aware of the appropriate tests and their administration in addition to the laws and rules that govern their employment and admissibility of information drawn from these instruments (Ewing, 1996). Most importantly, forensic professionals perform psychological testing for legal purposes and interpret them “within applicable constitutional considerations and rules of evidence and procedure” (Heilbrun, 1992).
Statutes or case law that vary in description and extent set the standard for legal issues (Heilbrun, 1992). The APA developed a Code of Ethics as a directional guide for the practitioner to maintain the highest ideals of psychology while ensuring compliance with the respect of human civil rights and avoid unethical practices (“American Psychological Association”, 2016). The APA also developed The Specialty Guidelines for Forensic Psychology as an effort to improve the quality of service, enhance development and practice, encourage the highest level of professionalism, and help practitioners to conduct themselves in a professional manner (“American Psychological Association”, 2016). The guidelines apply in all matters regarding educational system, the judicial system, and administrative systems despite their generalization to all cases that may arise (“American Psychological Association”, 2016). However, the guidelines are not mandatory, but intended to provide further guidance to ensure ethical and legal practices and should be used in conjunction with the Ethical Principals of Psychologists and Code of Conduct (“Specialty guidelines for forensic psychology,” 2013).
Historically, the law and the use of expert witnesses has been controversial as the general public perception maintains that expert testimony is based on the “junk science” of professionals who will find evidence in anything for a fee (Melton, Petrila, Poythress, & Slobogin, 2008). It has also been speculated that professional experts use the legal process to undermine the political judgment of legislation (Melton, Petrila, Poythress, & Slobogin, 2008). Due to the controversies associated with expert witnesses, law schools have incorporated traditional mental health law into the curriculum to clearly define the use of social science evidence (Melton, Petrila, Poythress, & Slobogin, 2008). However, it is important to note that the law regarding expert witnesses may deviate from the conformity of the norms of mental health practices and scientific inquiry (Melton, Petrila, Poythress, & Slobogin, 2008).
The rejection of expert testimony throughout history called for reformation in latter years. Frye VS The United States in 1923 set the Frye Standard of today which allows incorporating psychology and law by allowing expert testimony to count as evidence before a court of justice (Dye, n.d.). In 1993, the U.S. Supreme Court ruled in Daubert VS Merrell Dow Pharmaceutical, Inc creating the Daubert standard. The Daubert Standard allowed expert witness testimony with the consideration of the methodology used, the degree of potential error, and scientific evidence available as evidence in a court of law (Dye, n.d.). People VS Hawthorne in Michigan in 1940 clarified that an expert witness criteria should not be based on a medical degree, rather depth and expertise of knowledge in the particular area, but continued to maintain the controversy surrounding expert witnesses (Dye, n.d.). Hidden VS Liberty Mutual Insurance made expert testimony in regards to psychological testing as valid and credible deviating psychological testing as a means to establish disability (Dye, n.d.). These cases began to set the standard on acceptable evidence in a court in regards to psychological testing and expert testimony.
Rights and Responsibilities
Attaining and eliciting informed consent for evaluation and explaining the parameters of the assessment, identifying that all information attained may be disclosed to those involved in the legal proceedings, as well as other limitations of privacy and confidentiality supports ethical practice and provides justified intentions of the forensic professional (American Psychology-Law Society, 2011). A clinician required to testify in a legal matter must report any risk of a dual relationship (Hugaboom, n.d.), including the potential of violation of APA Ethical Standard 4: Privacy and Confidentiality in regards to the legal matter (American Psychological Association, n.d.). In the event of those above, it is imperative that the clinician separates the forensic role from the therapeutic role and never combine the two functions (Hugaboom, n.d.). At the severance of a professional relationship and incorporation of a forensic role, the therapist must depict any potential compromise of objectivity and disclose any possible conflicts of interest (Hugaboom, n.d.).
Test takers rights are encompassed by the APA and become the responsibility of the professional to ensure the test taker receives these rights (“American Psychological Association”, 2016). As with all mental health affiliations, the test taker has the right to be informed and treated with respect, void of impartiality, and should be made aware of materials available to assist in the test-taking process and have reasonable access to all materials (“American Psychological Association”, 2016). In conjunction with the APA’s standard of informed consent, test takers should be given access to a brief description of the test, it’s nature and purpose, whether scores will be exposed, and what the intended use of the results, unless the exposure will prove detrimental to the result (“American Psychological Association”, 2016).
Under the American Disabilities Act, test takers are required reasonable accommodations in test administration which increases the validity of the scores (“American Psychological Association”, 2016). The preventative measures taken to ensure the accuracy of the scores and prevent dishonesty should also be shared with the test taker (“American Psychological Association”, 2016). The test taker should also be notified of any materials needed for the test, any prohibitions, and any rules that are to be followed (“American Psychological Association”, 2016). The potential of re-testing and scoring measures in addition to any associated fees or feedback should be discussed as well (“American Psychological Association”, 2016). It is also necessary to inform test takers of all instructions prior to testing taking (“American Psychological Association”, 2016).
Testing must be employed and interpreted by appropriately trained professionals, making it the responsibility of the professional to choose an appropriate test for intended purposes and encompass knowledge for test takers who qualify for special accommodations (“American Psychological Association”, 2016). A forensic psychologist breaks ethical standards if he or she practices outside areas of expertise attained through educational training and should have a fundamental knowledge in legal, factual, and civic standards in which they practice allowing them the privilege of expressing opinion, but continuing to render the highest levels of professional conduct (American Psychology-Law Society, 2011). Regarding psychological assessment and treatment, the forensic practitioner is encouraged to elicit scientific and vocational knowledge by choosing assessment tools appropriate for the issue and exposing any limitations associated with the tool (Hugaboom, n.d.).
The administrator should ensure testing conditions do not interfere with the testing process or cause a hindrance in performance affecting the scores (“American Psychological Association”, 2016). Test takers have the right to know why they are taking a test and if the test is optional (“American Psychological Association”, 2016). In this respect, it is the responsibility of the professional to engage in testing activities only after receiving informed consent, except when testing is mandated by a court of law, employment, or government regulation (“American Psychological Association”, 2016). If the individual chooses not to take the test, the professional should make them aware of the pros and cons of taking the test, consequences associated with refusing, and informing the test taker of any deviations away from the test standard and why those deviations were taken (“American Psychological Association”, 2016).
Written or oral results of test scores should be delivered in a reasonable amount of time by the test emloyer (“American Psychological Association”, 2016). Reviewing test scores should include scoring methods, ways to improve, test retaking, void of stigmatization, and options of a second opinion (“American Psychological Association”, 2016). When interpreting test results, care should be utilized by considering the purpose of the assessment and identifying and considering factors that may affect accuracy or judgment (American Psychology-Law Society, 2011). Despite indifferences that may occur due to cultural diversity, Ethical Codes support the fair and equal treatment for all humans (American Psychological Association, n.d.). The scores and accommodations should be maintained confidentially with access only allowed to those approved at the time of informed consent or with a signed a release of records (“American Psychological Association”, 2016). It is the responsibility of the professional to maintain patient rights as advised by the APA. Disregarding patient rights violates the Code of Ethics set forth by the APA and therefore holds the potential of sanction and possibly losing their license (“American Psychological Association”, 2016). Although the interpretations and perceptions of assessments may differ among the diverse cultures, professional standards do not change and should always be upheld and abandon or adapt ethicality.
American Psychological Association. (2016). Retrieved from http://www.apa.org/science/programs/testing/rights.aspx
American Psychological Association. (n.d.). Retrieved from http://www.apa.org/ethics/code/code-1992.aspx
American Psychology-Law Society. (2011). Specialty guidelines for forensic
psychology. Retrieved from https://www.apa.org/practice/guidelines/
Dye, S. (n.d.). Forensics. Retrieved from http://forensicpsych.umwblogs.org/psychology-and-law/court-cases/
Ewing, C. P. (1996). Psychological testing and the law. Behavioral Sciences & the Law, 14(3), 269-270. Retrieved from: http://web.a.ebscohost.com.libproxy.edmc.edu/ehost/pdfviewer/pdfviewer?sid=952b729e-5c57-427c-9884-2992e6451627%40sessionmgr4010&vid=1&hid=4106
Heilbrun, K. (1992). The role of psychological testing in forensic assessment. Law and Human Behavior, 16(3), 257-272. Retrieved from https://login.libproxy.edmc.edu/login?url=http://search.proquest.com.libproxy.edmc.edu/docview/914687295?accountid=34899
Hugaboom, Denise (n.d.). “The Different Duties and Responsibilities of Clinical and Forensic Psychologists in Legal Proceedings.” The Review: A Journal of Undergraduate Student Research 5 (2002): 27-32. Web. [accessed: November 29, 2016]. Retrieved from <http://fisherpub.sjfc.edu/ur/vol5/iss1/4>
Melton, G. B., Petrila, J., Poythress, N. G., & Slobogin, C. (2008). Psychological
evaluations for the courts: A handbook for mental health professionals
and lawyers. (3rd ed.). New York: Guilford Press.
Specialty guidelines for forensic psychology. (2013, January). American Psychologist, 68(1), 7-19. Retrieved from http://www.apadivisions.org/division-41/about/specialty/2006-draft.pdf