Third Party Evaluations: Ethical,Regulatory, and Statutory Considerations

Tim F. Branaman, Ph.D., ABPP (Forensic)

Forensic Psychology Summer ConferenceArgosy University, Dallas

June 11, 2001

Disclaimer

All comments and observations made by me solely reflect my personal opinions or perspectives at a given point in time. They should not be construed as representative of any position or perspective of the Texas State Board of Examiners of Psychologists or my role with that agency.

Forensic Practice

Emergence of Forensic Specialization

Clinical Practice

Developing prominent body of literature over past 25 years

Standards and Requirements

Ethical

Regulatory

Statutes

Ethical Standards

Regulatory Standards

StatutoryStandards

– Aspirational as well as required standards

– Legislation establishes requirements that are implemented by statutory code

– occupations code, family code, code of criminal procedures, etc

– Legislation may stipulate requirements

– Regulatory standards have the force of law

– Standards are established for purpose of maintaining standards of profession and protection of the public

Third Party Evaluations

• Distinction of treating and forensic expert roles have been recognized for past 20 years– Advocacy for enforcement of boundaries not only

in ethical standards but legal standards began to emerge

• Committee on Ethical Guidelines for Forensic Psychologists Guidelines – 1991 Guidelines– Multiple draft revisions , and– March 2011 draft revision

• American Academy of Psychiatry and Law (2005)• American Psychiatric Association (2008)• American Psychological Association in practice

guidelines

• Defining differences continue to be refined– Not just the distinction between “treating” versus

“evaluating” experts– Forensic literature has begun to more clearly

distinguish roles by defining to whom duty is owed• 2-party evaluations: mental health professional and

patient/client• 3rd party evaluations: mental health professional,

individual being evaluated, and third party who will receive the information from the evaluation

Function of Third-Party Evaluation

• Third-party evaluations are the undertaking of an assessment for the purpose of providing information to a third-party about the individual to be evaluated

• Primary duty is to provide third party with information regarding an issue pertaining to legal, administrative, or financial questions Gold, L. & Shuman, D. (2009). Evaluating Mental Health Disability in the Workplace: Model, Process, and Analysis.

• Not just important for forensic mental health specialists, but practitioners in general

• Psychologists and other mental health professionals should understand when they are changing roles and to whom duty is owed

SGFP Proposed Revision – 6th DraftReleased March 18, 2011

• For the purposes of these Guidelines, forensic psychology refers to professional practice by any psychologist working within any sub-discipline psychology (e.g.., clinical, developmental, social, cognitive) when applying the scientific, technical, specialized knowledge of psychology to the law assist in addressing legal, contractual, and administrative matters. Application of the Guidelines does not depend on the practitioner’s typical areas practice or expertise, but rather on the service provided in the case at hand.

Specialty Guidelines Recognize

• Evaluation is not necessary to involve third parties

• Matters that involve administrative bodies may be initiated by evaluee, but are for benefit of third party

Application in Texas

• TSBEP Rules of Practice– 465.18 Forensic

Services– Evolving since

1999

TSBEP Rules of Practice

Benefit of Rules

• Protection of consumer– Public at large– Professional consumers, e.g.., attorneys

• Benefit to psychologist– Protection of psychologist by improved clarity of

role boundaries

To Whom Do Forensic Rules Apply

• TSBEP Rules of Practice are consistent with Specialty Guidelines for Forensic Psychology– Apply to any “licensee who knows or should

know” that the product of services being provided will be used in a legal proceeding

• TSBEP Rules make clear involvement of a third-party by distinguishing a “patient” from an individual who is the subject of a forensic evaluation

Recent Rule Changes: Implemented and Proposed

• Implemented– 465.18(f) Parenting Facilitators – Effective March 2011

• Proposed– 465.1(3) Definitions (“Forensic Psychology”)– 465.18(a)(1) (Forensic Services)– To be voted on by Board at meeting August, 2011

Parenting Facilitator: Implemented

• Authorized by 2009 legislation– HB 1012 Amended Texas Family Code– Changed previous definition of “Parenting

Coordinator” – Added new role, “Parenting Facilitator”

Parenting Coordinator

• Court appointed• A variety of functions including “settling

disputes regarding parenting issues and reaching a proposed joint resolution or statement of intent regarding those disputes”

Functions of Parenting Coordinator• identifying disputed issues; • reducing misunderstandings; • clarifying priorities;• exploring possibilities for problem solving;• developing methods of collaboration in parenting;• understanding parenting plans and reaching agreements about parenting

issues to be included in a parenting plan;• complying with the court's order regarding conservatorship or possession

of and access to the child;• implementing parenting plans;• obtaining training regarding problem solving, conflict management, and

parenting skills; and• settling disputes regarding parenting issues and reaching a proposed joint

resolution or statement of intent regarding those disputes.

Parenting Facilitator

• A mental health or legal professional who serves all the same functions as a Parenting Coordinator who also monitors compliance with court orders

• Designated licensing boards were required to implement rules by March 2011 for purpose of oversight of licensees

Forensic Services: Proposed

• Intended to improve clarity of what constitutes forensic services and third-party referrers

• Clarifies what practitioners “should know” involves a legal claim or may potentially result in legal procedures pertaining to legal claims

Forensic Services: Proposed

• Proposed rule would apply to – DARS Disability Determination evaluations– Fitness for Duty Evaluations– Pre-employment evaluations for high risk/security

related professions– Human Resource Department referrals for “risk

assessment” and recommendations for return to work following a critical incident

Code of Criminal Procedures

Effect of Other Code Changes

Likely: Increased CEUs to qualify under 46B to conduct court appointed competency and sanity evaluations

Implemented: Deregistration Evaluation Specialist

CCP 62.401 – Deregistration of Certain Convicted Sex Offenders

• CCP 62.401 delegated to the Texas Council on Sex Offender Treatment (CSOT) the task of establishing and implementing a protocol for evaluation for risk of criminal recidivism

• Deregistration applies to Public Registry • Eligibility for deregistration generally follows

10 years after release from supervision

CCP 62.401 – Deregistration of Certain Convicted Sex Offenders

• While only a Licensed Sex Offender Treatment Provider (LSOTP) may provide treatment to a convicted sex offender sexual behavior, forensic psychologists have evaluated for non-treatment purposes, e.g.., risk assessment, mitigation

• Only LSOTPs who have been identified as qualified and who have completed a required two day training program will be licensed to conduct the deregistration evaluations

Pending Approval

HB275 & CCP 46.B

HB 275 was passed out of House and Senate and sent to the Governor for signing on May 27, 2011

HB275 & CCP 46.B Evaluator Requirements for CTST

• HB275 modifies 46B in several areas– Clarifying qualification language– Increasing continuing education hours– Clarifying elements associated with diagnosis

following determination relevant to essential element of incompetence to stand trial as previously set forth 46.B

– Explicit prohibition of a determination of incompetence solely on refusal to communicate during the competency examination

HB275 & CCP 46.BPsychologist Qualifications

• By “certification” or “training”– Certification by ABPP in forensic psychology

or– training consisting of “at least 24 hours of specialized

forensic training relating to incompetency or insanity evaluations”

and– “at least eight hours of continuing education relating

to forensic evaluations, completed in the 12 months preceding the appointment”

HB 275 & CCP 46.B Evaluator Report Requirements

• Emphasis on linking diagnosis to symptoms and functioning as supported by current indications and the defendant's personal history

• Whether identified mental condition has lasted or is expected to last continuously for at least one year

HB 275 & CCP 46.B Evaluator Report Requirements

• Emphasis on linking diagnosis to symptoms and functioning as supported by current indications and the defendant's personal history

• Degree of impairment and its specific impact on defendant’s ability to engage with counsel in a reasonable, rational manner

• Whether identified mental condition has lasted or is expected to last continuously for at least one year

HB 275 & CCP 46.B Evaluator Report Requirements

• State conclusions reached based on each element of methodology used, and

• “State the specific criteria supporting the expert's diagnosis”

• Determination of incompetence to stand trial may not be based on the defendant’s unwillingness to communicate with the examiner

HB 275 & CCP 46.B Evaluator Report Requirements

• If defendant found to be incompetent, then– the symptoms, exact nature, severity, and

expected duration of the deficits– and the impact of the identified condition on the

factors listed in Article 46B.024 (legal requirements)

– estimated length of time necessary to restore defendant to competency and likelihood of that occurring in the foreseeable future

In Conclusion: Don’t Forget

Ethical Standards & Guidelines

Administrative Code: Board

Rules

Statutory Code

American Academy of Psychiatry and Law. (2005). Ethics Guidelines for the Practice of Forensic Psychiatry. http://www.aapl.org/ethics.htmCommittee on Ethical Guidelines for Forensic Psychologists Guidelines. (1991). Specialty guidelines for forensic psychologists. https://www.ap-ls.org/ aboutpsychlaw/SpecialtyGuidelines.phpCommittee on Ethical Guidelines for Forensic Psychologists Guidelines. (2011). Fifth Pending Draft Revision of Specialty guidelines for forensic psychologists. Downloaded from https://www.apls.org/aboutpsychlaw/ SpecialtyGuidelines.phpGold, L. & Shuman, D. (2009). Evaluating mental health disability in the workplace: Model, process, and analysis. New York: Springer.Greenberg, S. & Shuman, D. (1997). Irreconcilable conflict between therapeutic and forensic roles. Professional, Psychology, Research and Practice, 28:1, 57-59.Greenberg, S. & Shuman, D. (2007). When worlds collide: Therapeutic and forensic roles. Professional, Psychology, Research and Practice, 38:2, 129-132.Helzel, T. (2007). Compatibility of therapeutic and forensic roles. Professional, Psychology, Research and Practice, 38:2, 122-128.Shuman, D., Greenberg, S., Heilbrun, K., & Foote, W. (1998). An immodest proposal- should treating mental health professionals be barred from testifying about their patients. Behavioral Sciences and the Law, 16, 509-523.Greenberg , L. & Gould, J. (2001). The treating expert: A hybrid role with firm boundaries. Professional, Psychology, Research and Practice, 32:5.