Practice and Professional Issues in Forensic Neuropsychology July 31, 2008

Sources of Referrals n Retained by individual attorney u communication primarily to one side u can usually (but not always) be discovered by other side u role is varied, depending on referral n Retained by court u communication equally directed to both sides u technically, opinion is for trier of fact n More complicated referrals where it isn’t clear

Initial Contacts n agree as to the business aspects of your activity u fees u retainer/prepayment u letter of protection – AVOID! n clarify your role n obtain the information you need; don’t be bashful about making demands for records that aren’t present n educate as to your capabilities n discuss your modus operandi

Some thoughts about fees n Established rates for forensic v. ‘treater’ roles: Should they be different? (Yes) n Prepayment and retainers are preferred over billed services n Door-to-door agreements common, but not for sleeping n Get written agreement in advance (often, attorney will have to consult client); get signature from both attorneys n Do not sign a “letter of protection”

Practice and Professional Issues n Third party observers n Release of test data n Payment for forensic services n Changing roles n Disclosing tests beforehand n Celebrity death matches – the Physics of forensic work

Practice Issue #1: Third Party Observers n n Case Scenario: You are retained by the defense to perform an “independent neuropsychological examination”, and the plaintiff’s attorney wants to be present personally, with a court reporter, a videotape, or an audiotape. n n WHAT ARE THE ISSUES n n WHAT DO YOU DO? n n ISSUES u u What does Florida law currently say? u u Social facilitation/inhibition u u Breaches of test security

Practice Issue #1 (cont’d): Presence of Third Parties During Evaluation n n Issues u u public domain release u u validity concerns u u demand characteristics u u impeachment and accuracy concerns

Practice Issue #1 (cont’d): Third Party Observers n n Recent developments: u u G-PIPE Amicus in Berman (TPO) u u G-PIPE Amicus in Piccolo (TPO with videotape retained) n n Broader issues u u If neuropsychologists refuse, what effect does that have on defense’s rights to an IME? u u If qualified neuropsychologists refuse, who will do the evaluations? u u Trained vs. untrained TPO’s n n Resolutions u u People vs. video vs. audio u u Sharing TPO data only with psychologists? u u Trained TPO’s?

Practice Issue #2: Release of Psychological Data n : n Case Scenario: You perform a neuropsychological evaluation at the request of Attorney A. Attorney B subpoenas your entire file, including all of the data and test forms n n WHAT ARE THE ISSUES? n n WHAT DO YOU DO? n n ISSUES: u public domain issue u misuse by untrained parties u copyright infringement

Sharing of Raw Data n Raw data governed by several doctrines u APA ethical principles u HIPAA u Copyright issues n See (D40/APPCN/AACN) test release document n Insist on releasing to licensed psychologist (resist other MHP) n If court ordered, request it to be sealed or “in camera”

Attix, et al., (2007) The Clinical Neuropsychologist, 21(2), Flow Sheet to Guide Test Release Decision Making

Practice Issue #3: Changing Roles n n Case Scenario: You are the therapist for a patient who subsequently gets into a complicated custody battle. The patient’s attorney asks you to testify as an expert witness n n WHAT ARE THE ISSUES n n WHAT DO YOU DO? n n ISSUES u u Transition from advocacy to expert role u u Therapy information protected

Practice Issue #4: Giving the examinee advanced notice n. n Case scenario: You are retained by defense attorney A. Plaintiff’s attorney B demands that you name the specific tests you will use to evaluate plaintiff in advance of the evaluation. n n WHAT ARE THE ISSUES? n n WHAT DO YOU DO? n n ISSUES: u u Allows the plaintiff to prepare for examination u u Allows plaintiff’s expert to object to individual tests, putting each test ‘on trial’

Practice Issue #5: Critiquing Another Psychologist n n Case Scenario: an attorney tries to retain you, not to provide an independent evaluation but to stay in the background and help the attorney attack a psychological evaluation that was already performed by another psychologist n n WHAT ARE THE ISSUES? n n WHAT SHOULD YOU DO? n n ISSUES u u Misdirects appropriate source of corrective action u u Public perception of profession u u Critiquing psychologist v. conceptualization

Evaluation Proper n Keep to the referral question, but let your judgment be your guide n Document everything, including ‘trivial’ matters, telephone contacts, correspondence, etc., because you may be asked to testify about this, or reconstruct it, later n Retain everything until case is over (even if your office floods, like mine has!) n Keep a running account of time spent as you go

Evaluation Proper n Develop rationale for your testing approach: know specifically why you have selected particular tests and deleted others; use background information from this course as a guide; know as much as you can about test operating characteristics n Be psychometric-savvy: keep a norms notebook, a reprint file, or other compendium of data to assist you in report preparation and/or testimony (but you may not want to bring this to the depo!!) n Traveling vs. receiving patient: know, and think, about the difference between home and away games

Reports n Written or not? Know ahead of time n Comprehensive format with sections u document opening statements and agreements u itemize data relied upon u describe findings u offer psycholegal formulation u simplify language; remember your audience n Routing of report

Oral Testimony n Qualifying as expert; stipulation; voire dire n Conferences – issues and pitfalls n Deposition and exhibits u direct examination u cross examination n Sharing or submitting raw data n Trial testimony n Settlement without trial/deposition

Forensic Self-Assessment n Decide, for yourself, how much you like, and will invite, forensic referrals n Immersion: how forensic neuropsychology is like functional magnetic resonance imaging n Self-regulation of referral sources n Financial dependency and independence of opinion n Role of board certification

Forensic Self-Development n Role of science in forensic evaluation is critical and evolving n Experience and knowledge are both important n Advocate or informant? n Knowing your audience n Clarify your values