Third Party Evaluations: Ethical, Regulatory, and Statutory Considerations Tim F. Branaman, Ph.D., ABPP (Forensic) Forensic Psychology Summer Conference Argosy University, Dallas June 11, 2001 Forensic Psychology Summer Conference Argosy 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 Statutory Standards –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 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 3 rd party evaluations: mental health professional, individual being evaluated, and third party who will receive the information from the evaluation 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 3 rd 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. 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 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 – 6 th Draft Released 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 – 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

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.

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

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 – Deregistration of Certain Convicted Sex Offenders CCP 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 – 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

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.B Psychologist 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. Committee on Ethical Guidelines for Forensic Psychologists Guidelines. (1991). Specialty guidelines for forensic psychologists. aboutpsychlaw/SpecialtyGuidelines.php Committee on Ethical Guidelines for Forensic Psychologists Guidelines. (2011). Fifth Pending Draft Revision of Specialty guidelines for forensic psychologists. Downloaded from SpecialtyGuidelines.php Gold, 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, Greenberg, S. & Shuman, D. (2007). When worlds collide: Therapeutic and forensic roles. Professional, Psychology, Research and Practice, 38:2, Helzel, T. (2007). Compatibility of therapeutic and forensic roles. Professional, Psychology, Research and Practice, 38:2, 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, Greenberg, L. & Gould, J. (2001). The treating expert: A hybrid role with firm boundaries. Professional, Psychology, Research and Practice, 32:5. American Academy of Psychiatry and Law. (2005). Ethics Guidelines for the Practice of Forensic Psychiatry. Committee on Ethical Guidelines for Forensic Psychologists Guidelines. (1991). Specialty guidelines for forensic psychologists. aboutpsychlaw/SpecialtyGuidelines.php Committee on Ethical Guidelines for Forensic Psychologists Guidelines. (2011). Fifth Pending Draft Revision of Specialty guidelines for forensic psychologists. Downloaded from SpecialtyGuidelines.php Gold, 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, Greenberg, S. & Shuman, D. (2007). When worlds collide: Therapeutic and forensic roles. Professional, Psychology, Research and Practice, 38:2, Helzel, T. (2007). Compatibility of therapeutic and forensic roles. Professional, Psychology, Research and Practice, 38:2, 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, Greenberg, L. & Gould, J. (2001). The treating expert: A hybrid role with firm boundaries. Professional, Psychology, Research and Practice, 32:5.