Ethical Practice in Forensic| Psychology
The profession of psychology has much to offer the legal system and those with possible or clearly identified psychological difficulties who find themselves negotiating the legal system. As a result, forensic psychology has emerged as a distinct specialty area within the broader field of psychology. Forensic psychology includes both scholarly and applied activities and repre- sents the intersection of clinical and experimental psychology and the law (Heilbrun, 2001). The clinical and experimental forensic arenas are them- selves composed of diverse psychological specialties, such as counseling, developmental, and social psychology. Thus, forensic psychologists may have multiple professional identities representing both their primary areas of training and experience and their subsequent application of their knowledge and skills to forensic matters.
In addition to psychologists who pursue professional involvement in the legal system, some clinicians inadvertently find themselves involved in the legal matters of their patients. Involvement of the clinician may be either requested or required. For example, a neuropsychologist may be subpoenaed to testify about the evaluation findings of a patient who sustained a traumatic brain injury in a motor vehicle accident. Understanding the professional, ethical, and legal issues involved in such situations is necessary for successful performance of one’s responsibilities.
http://dx.doi.org/10.1037/11469-001 Ethical Practice in Forensic Psychology: A Systematic Model for Decision Making, by S. S. Bush, M. A. Connell, and R. L. Denney Copyright © 2006 American Psychological Association. All rights reserved.
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Because of the varied contexts in which forensic psychologists practice, there will likely be exceptions to many of the topics examined in this text. Nevertheless, an increased understanding of the ethical issues that pertain to forensic psychology in general will assist psychologists in all forensic contexts to better serve those with whom they interact professionally. For the purposes of this text, the term forensic psychologist is used broadly to refer to those psychologists who perform forensic activities or work in forensic settings; it is not used solely to denote those with specialized training or board certification in forensic psychology.
FORENSIC PSYCHOLOGY IN CIVIL AND CRIMINAL CONTEXTS
Psychologists serve the justice system in a variety of contexts (Blau, 1998; Heilbrun, 2001; Koocher & Keith-Spiegel, 1998; Melton, Petrila, Poythress, & Slobogin, 1997; Walker & Shapiro, 2003). They can be found practicing and conducting research in both civil and criminal legal arenas. Civil law includes matters of family law; administrative proceedings, such as Worker’s Compensation; and tort law, such as personal injury litigation. Typically, the purpose of civil law is to assign responsibility for harm and to provide a remedy. However, family law, a type of civil law, differs from other civil matters in several important ways. In family law matters, the court is generally called on to resolve disputes having to do with the following: (a) marital dissolution, where there may or may not be a finding of fault; (b) determinations regarding parenting relationships, such as parenting agreements following divorce, adoption proceedings, or proceedings to termi- nate parental rights; and (c) matters of juvenile justice that do not fall within the purview of criminal law, owing to the status of the actor as a minor.
In contrast to civil law, criminal law is based on the concept of “moral blameworthiness” (Behnke, Perlin, & Bernstein, 2003). When an individual has been found guilty of a crime, a moral sanction applies, including removal from society if deemed necessary by the court. Criminal law addresses a number of steps in determining the guilt or innocence of a defendant and providing a consequence if the accused is found guilty. Psychological expertise and services can be found across the continuum of criminal law.
In both civil and criminal contexts, psychologists engage in professional activities relevant to a wide range of legal and psychological issues. According to Standard 7-11 of the Criminal Justice Mental Health Standards (Ameri- can Bar Association [ABA], 1989),
Mental health and mental retardation professionals serve the adminis- tration of criminal justice by offering expert opinions and testimony
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within their respective areas of expertise concerning present scientific or clinical knowledge; by evaluating and offering expert opinions and testimony on the mental condition of defendants and witnesses; by providing consultation to the prosecution or defense concerning the conduct of individual cases; and by providing treatment and habilitation for persons charged with or convicted of crimes. Because these roles involve differing and sometimes conflicting obligations and functions, these professionals as well as courts, attorneys, and criminal justice agencies should clarify the nature and limitations of these respective roles.
Forensic Evaluation Services
The forensic psychology evaluation differs considerably from the clini- cal psychology evaluation. Differences begin with the language used to describe the evaluation. Psychological evaluations performed by practitioners who are hired as independent contractors by third parties, such as disability insurers, attorneys, or the courts, are often referred to as independent psycholog’ ical examinations or independent medical examinations. Differences between forensic and clinical evaluations also include the nature of the requested evaluation, which has theoretical and practical implications for the manner in which the task is approached (Denney & Wynkoop, 2000). With forensic evaluation services, context affects (a) the goals of the evaluation, (b) the psychologist’s role, (c) the assumptions the psychologist makes about the accuracy of information received from the examinee, (d) alliances formed, and (e) methodology used by the psychologist.
The purpose of a forensic evaluation is to assist the legal decision maker (Melton et al., 1997), who may be a judge, juror, mediator, or other hearing officer. This forensic purpose stands in contrast to the clinician’s goal of assisting the patient. Accepting that the psychologist’s primary obligation is to the legal decision maker rather than to the examinee may be a difficult transition to make for psychologists who have been clinically trained. However, it is necessary for examining psychologists to understand that the retaining party is the client and that the examinee is neither a patient nor the client of the examining psychologist. Exceptions may exist in forensic treatment settings in which evaluations may be performed to facilitate clinical services rather than to inform legal decisions.
The goal of the psychologist retained to serve as an expert witness is to provide information useful to the trier of fact in its effort to answer a specific legal question, such as the presence or absence of psychological “damages” or competency to stand trial. To achieve this goal, the psycholo- gist assumes the role of seeker of truth and judicial educator (Denney & Wynkoop, 2000; Saks, 1990). The opinions provided are not designed to
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help the examinee; in some instances, the opinions offered may conflict with the litigant’s wishes.
The psychologist retained to serve as an expert witness cannot assume that the information received from the litigant is accurate. Litigants may not even be voluntary participants in the evaluation. The possible outcomes of litigation can create tremendous motivation for the litigant to manipulate the evaluator. It is counterproductive to trust the presentation of such highly invested examinees without verification.
The alliances that a psychologist maintains may differ depending on the context of the service provided. Although a psychologist providing treatment typically forms a therapeutic alliance with the patient, such an alliance with a forensic examinee may not be necessary or appropriate (S. Greenberg & Shuman, 1997). The psychologist retained as an expert witness forms an alliance with the truth. The investment in determining and reporting the truth may make problematic the establishment of rapport between examiner and examinee. Rapport may be misconstrued as an offer of advocacy and may lure the examinee into a level of disclosure that is not in the examinee’s best legal interest. A posture of respectful receptivity with an arms-length, or dispassionate, mien may be the most appropriate posture to assume during the examination.
The context in which the evaluation is performed also affects the methodology used by the psychologist. Forensic psychological evaluations require a broader base of information sources than is typical of clinical practice, a base that extends well beyond the self-report of the examinee (Denney & Wynkoop, 2000). In contrast to the urgency that is often required in the provision of clinical evaluation services, psychologists practicing in forensic contexts must take the time necessary to ensure that the broad base of information that is needed (e.g., interviews, observations, records, test data) can be obtained and thoroughly reviewed before conclusions are offered.
The Distinction Between the Roles of Expert Witness and Treating Doctor
The distinction between the roles of treating doctor and forensic psychological expert has been the focus of some discussion in forensic psychology ethics (e.g., J. M. Fisher, Johnson-Greene, & Earth, 2002; S. Greenberg & Shuman, 1997; Iverson, 2000). Both of these roles are subsumed under the first ABA role definition cited earlier, that of “offering expert opinions and testimony concerning present scientific or clinical knowledge” (ABA, 1989, Standard 7-1.1, <f 6). In the treatment role, the psychologist may be required to provide records to, or testify before, the
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court on a legal matter in which the psychological functioning or treatment of a patient may be relevant to the court. In such instances, the psychologist is considered a fact witness,1 testifying about diagnostic impressions and the facts of the treatment.
Opinions about the clinical interpretation of data are relevant contribu- tions, but the treating therapist rarely has accomplished an arms-length, comprehensive assessment that would lead to defensible opinion on the psycholegal issue. Although there is controversy about whether the treating clinician should offer opinion on the ultimate issue before the court, the treating psychologist must limit opinion to that for which adequate data has been gathered. For example, a therapist might opine about the likely impact of the child patient’s visitation with a parent the therapist has never met, if the therapist makes clear the limitations of that opinion (i.e., that it is based only on the child’s and possibly other parent’s presentation; that the therapist is an advocate for the patient and has not “heard the other side of the story”; that the interpretation of data collected in therapy is more subjective and potentially less reliable than data gathered from a range of sources including objective measures, careful records review, collateral consultation, and so on). Even with such careful statement of these limita- tions, the therapist testifying about matters before the court must be aware of the potential for the court to misconstrue or misuse the opinion data. The therapist who has risked this misuse of data may find little support in the professional community for offering opinion derived through provision of psychotherapy as an expert evaluation of the forensic issue (S. Greenberg & Shuman, 1997; Heilbrun, 1995, 2001; Melton et al, 1997). The distinc- tion, then, is between being an expert clinician and being a forensic examiner for the purpose of developing an opinion, to be offered in court, on a psycholegal matter. Both may function as experts in the court, and the clinician may be able to provide expert opinion on the clinical data, but generally the clinician has insufficient data to offer an opinion on the matter before the court.
To facilitate clinical treatment, the treating doctor may provide diag- nostic impressions prior to performing a complete review of relevant records, interviewing collateral sources of information, conducting thorough psycho- diagnostic testing, or otherwise performing an evaluation adequate to answer questions before the court “with a reasonable degree of certainty.” In contrast
‘The distinction between fact witness and expert witness, although common in psychological writings, is not found in the Federal Rules of Evidence (FRE; 1975). The FRE (Article VII, Opinions and Expert Testimony) distinguishes only between expert and lay witnesses, and it is the court that makes the determination for any given case. The term fact witness is not found in the FRE.
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to the clinical role, the forensic psychological expert role requires (a) a review of all materials and completion of all procedures upon which to base an opinion sufficient to withstand judicial scrutiny and (b) an objective and judgmental position that may be impossible for the typically accepting and nonjudgmental clinician to achieve (Shuman & Greenberg, 1998).
The term treating doctor has at times been used inappropriately to describe all clinical activities, such as clinical diagnostic evaluations that do not involve remedial intervention or advocacy (Bush, 2004b). Although clinical evaluations are typically performed to facilitate therapy, they are not intended to be therapeutic in and of themselves. Thus, the goals, assumptions, and alliances of the clinical examiner may more closely parallel those of the forensic examiner than those of the treating therapist.
The distinction between treating doctor and expert witness is limited and is insufficient to understand the forensic roles of psychologists (Bush, 2004b). Heilbrun (2001) described five possible roles for mental health professionals in forensic assessment contexts: clinical or court-appointed evaluator; defense, prosecution, or plaintiffs expert; scientific advisor to the court; consultant; and fact witness. This broad description of roles better reflects the breadth of psychologists’ potential professional forensic involvement.
Blurring of Professional, Clinical, and Forensic Roles
The role held by the psychologist has implications for objectivity and accuracy in the presentation of information to the court and, by extension, the accuracy of judicial determinations (Shuman & Greenberg, 1998). Blur- ring of professional, clinical, and forensic roles has the strong potential to invoke conflicts of interest that negatively affect one or more of the roles (Shuman & Greenberg, 1998). Psychologists have a responsibility to recog- nize the potential for conflicts of interest in dual or multiple relationships with parties to a legal proceeding and to seek to minimize their effects (Standards 3.05, Multiple Relationships, and 3.06, Conflict of Interest, of the American Psychological Association’s [APA’s] Ethics Code, 2002; Specialty Guidelines for Forensic Psychologists [SGFP] IV, Relationships, subsection D, from the Committee on Ethical Guidelines for Forensic Psy- chologists, 1991). In general, to maximize objectivity, these roles should not be combined in a single case (Denney, 2005; Heilbrun, 2001).
One potential exception to the principle of avoiding dual relationships may be seen in the psychologist who transitions from the role of examiner to that of trial consultant after all evaluation-related responsibilities have been completed. For example, a psychologist who is retained by a criminal defense attorney to conduct an evaluation and provide verbal feedback,
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who is asked to not write a report, and who will not later testify might appropriately transition to the role of consultant. The psychologist in this scenario will have completed the role of examiner and will no longer be required to maintain impartiality.
Some forensic mental health professionals want to have it both ways, to be healers and to serve the adversary system (Stone, 1984). L. R. Green- berg and Gould (2001) took the position that, in some situations, psycholo- gists may ethically have it both ways. They described a “hybrid role” in which the treating psychologist whose patients have impending or ongoing litigation should be sensitive to the unique experiences and needs of such patients, should be aware that the litigation will likely impact the therapy, and should possess many of the practice-related traits of the forensic exam- iner, while maintaining firm limits regarding the nature of the opinion testimony provided (L. R. Greenberg & Gould, 2001). As these researchers described, although the treating psychologist may provide opinions regarding diagnosis, treatment, and prognosis, “the treating expert generally declines to express opinions on psycholegal issues (e.g., custody recommendations and parental capacity)” (p. 477). When overlapping or multiple roles are adopted, it is how the overlap is managed that distinguishes ethical conduct from misconduct.
Although psychologists may define the factors that compose a forensic psychological evaluation and the factors that characterize a competent expert witness, it is ultimately the court that determines what evidence will be allowed and who will be considered an expert in a particular case. The adversarial system is designed to provide the checks and balances for deter- mining the adequacy (relevance and reliability) of the psychologist’s work product. It is the psychological sophistication of the attorneys, trial consul- tants, and trier of fact involved in the case that will determine the effective- ness of the adversarial system for cases in which psychological functioning is at issue. It is the responsibility of the psychologist to provide education to those who do not appreciate the threats to impartiality and to attempt to maintain clear distinctions in professional roles.
THE ADVERSARIAL ENVIRONMENT
Expert witnesses play a prominent role in the U.S. litigation process (Crown, Fingerhut, & Lowenthal, 2003); however, the adversarial nature of the U.S. legal system presents unique challenges for psychologists. A primary issue that is unique to many forensic situations is that the prac- titioner’s opinions may be challenged or questioned. The “opponent” mount- ing this challenge is an individual or team of individuals who question the
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practitioner’s methods, opinions, and qualifications. A psychologist retained by the defense attorney in a civil case or by the prosecution in a criminal case to provide an “independent” opinion will be seen by some examinees as an opponent, a perception that may alter the examinee’s behavior during the exam. The perception of the psychologist as an opponent leads to many of the ethical dilemmas that are faced by forensic psychologists.
The adversarial environment may also pit psychologists against those who have retained their services. The attorney who has retained a psycholo- gist to perform an evaluation has an allegiance to the client and must diligently advocate for the client. In contrast, the examining psychologist has a responsibility to remain objective. Although retained by the attorney, the psychologist has an allegiance to the court. This inherent clash between the attorney as advocate and the expert witness, whose single most important obligation is to approach each question with independence and objectivity (Crown et al., 2003; Lubet, 1999), is also a source of ethical conflict for psychologists.
Psychologists are not always adequately prepared by their education and predoctoral training for these challenges. Thus, for many psychologists, the transition from the classroom or clinical setting to a forensic environment may involve a substantial paradigm shift and a corresponding struggle with the ethical, moral, and legal issues involved (Martelli, Bush, & Zasler, 2003). The most logical approach to both advancing ethical practice and availing the legal system of one’s expertise may be to develop an increased sensitivity to the disparities between conflicting interests and ethics.
THE NEED FOR INFORMATION ON ETHICS IN FORENSIC PSYCHOLOGY
The pulls to sacrifice objectivity, the differences between clinical and forensic activities, and the enticement to step beyond the boundaries of one’s competence all provide opportunities for ethical misconduct. Particularly in today’s health care environment, in which shrinking reimbursement for services is often coupled with increased time-consuming clerical require- ments, the lure of higher fees for one’s services may draw inadequately prepared clinicians into professionally dangerous waters. Similarly, financial incentives may lead even the most qualified forensic psychologist into uneth- ical behaviors that are harmful to the retaining party, examinee, legal system, and profession of psychology. An awareness of the common ethical chal- lenges in forensic psychology can help psychologists examine their own practices and the practices of their colleagues.
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APPLYING GENERAL BIOETHICAL PRINCIPLES IN FORENSIC ARENAS
All ethical principles are based on fundamental human values. Values that a society deems important, such as the right to self-determination and the right to quality health care, are applied to specific industries and professions. Beauchamp and Childress (2001) offered a model of biomedical ethics that has been widely adopted by writers in a variety of health care specialties, including psychology. The model is composed of four basic principles: autonomy, nonmaleficence, beneficence, and justice. Psycholo- gists may recognize the last three principles from the APA Ethics Code. The first principle, autonomy, is also present in the Ethics Code, embedded in General Principle E (Respect for People’s Rights and Dignity).
Autonomy refers to self-determination, the ability to make decisions regarding one’s life. Nonmaleficence is closely related to the Hippocratic Oath: First, do no harm. Beneficence takes clinician responsibility a step further by requiring an attempt to promote that which is beneficial to the patient. In health care settings, justice typically refers to the equitable distribution of the burdens and benefits of care (Hanson, Guenther, Kerkhoff, & Liss, 2000). Stone (1984) noted that “to many moral philosophers, justice is itself a beneficence” (p. 71). He elaborated as follows:
Justice is a beneficence to a society of unidentified persons—that is, to the general good. In contrast, the doctor’s practical ethical duty is to ease the suffering of particular identified patients. Medicine has not yet solved the problem of how to balance the particular good of the identi- fied patient against the general good of the unidentified masses. We lose our practical ethical guidelines when we try to serve such greater good in the courtroom, (p. 71)
Biomedical ethical principles can be readily applied to most ethical challenges in clinical psychology where the clinician’s goal is to help patients, to avoid harm, to respect the wishes of patients regarding their treatment, and to practice in a just and fair manner. However, in an adversarial judicial system, the application of these principles may initially appear to be far more challenging.
In forensic practice, psychologists have a responsibility to respect the rights of examinees and other clients to determine their involvement in psychological services. Examinees participate in independent psychological evaluations more or less of their own accord, albeit at times under the threat of negative consequences should they choose not to participate. In legal contexts, the concepts of “nonmaleficence” and “justice” are closely tied (Martelli et al., 2003). Forensic psychologists have a responsibility to treat
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examinees with courtesy, dignity, and fairness. Beyond the possibility of invoking emotional reactions to evaluation questions or tasks, practitioners must not bring direct harm to examinees during evaluations. Nevertheless, the results of forensic psychological evaluations and subsequent testimony have the potential to result in considerable negative effects on the lives of examinees. It is the psychologist’s responsibility to perform a fair evalua- tion and to present the findings objectively and dispassionately. The legal decision maker then has the task of ensuring a just outcome. An examinee who believes he or she has been treated fairly and respectfully is less likely to perceive the examiner as being maleficent, even given an unfavorable determination.
For forensic examinations, helping the examinee is not a primary goal of the examiner. Helping the trier of fact to make an appropriate determination taking into account the examinee’s cognitive or psychological functioning is a goal. The examinee may or may not benefit from the examination findings. Thus, the principle of beneficence as it relates to forensic psychological services may generally fall within the ambit of the justice system rather than the individual examinee.
Although helping the examinee may not be a primary goal of the examiner, there are nevertheless situations in which the examiner is ethically obligated to assist the examinee. When evidence of maleficence is observed in the course of professional duties, forensic psychologists have a responsibil- ity to report or ameliorate it, with strongest advocacy taken on behalf of the most vulnerable individuals.
Applying bioethical principles in forensic practice can be more complex still. For example, psychologists hired as trial consultants by defense attorneys in civil litigation cases strive to harm the plaintiffs case and, by extension, the plaintiffs financial security. One of the psychologist’s roles is to identify errors in the work of the psychologist retained by the plaintiffs attorney, errors that may lead to a decision for the defendant, even if the psychologist believes that the plaintiff actually deserves to win the case. In such a situation, determining whether justice was served may be a difficult thing to do.
The adversarial process is built on the assumption that right will prevail if the responsibilities of all participants are fully discharged. It is not the forensic psychologist’s responsibility to ensure retention by the party deserv- ing to prevail. It is the forensic psychologist’s responsibility to thoroughly and adequately perform his or her duties; if the resultant outcome favors the “unjust,” we believe that the psychologist must forgo a sense of personal responsibility for that injustice. The differences between clinical and forensic contexts notwithstanding, we believe that the Beauchamp and Childress (2001) model is useful in forensic psychology and have chosen to use their
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model in the more comprehensive decision-making model that is presented later in this chapter.
APPLYING PSYCHOLOGICAL ETHICS IN FORENSIC ARENAS
The 2002 APA Ethics Code is the 10th version of the Ethics Code, and it reflects the continuing evolution and maturation of the profession of psychology. The Ethics Code applies to all psychology specialty areas, including forensic psychology. However, sections of the Ethics Code may hold more or less relevance for various aspects of forensic practice than they do for clinical psychology or other areas of practice. For example, it may be more common to have one’s credentials called into question (Stan- dard 2.01, Boundaries of Competence) in forensic practice than it is in clinical practice.
Understanding changes between different versions of the APA Ethics Code that are relevant to forensic practice is essential when determining appropriate professional conduct.2 Because previous texts addressed the changes to the Ethics Code in some detail (e.g., C. B. Fisher, 2003a; Knapp & VandeCreek, 2003), this section provides only a brief overview, with emphasis on those changes that are most relevant to forensic psychology.
General Principles
The 2002 APA Ethics Code’s General Principles reflect increased emphasis on the model of biomedical ethics described by Beauchamp and Childress (2001). This model centers on four ethical principles: autonomy, beneficence, nonmaleficence, and justice. Autonomy, the right to self- determination, remains reflected in General Principle E (Respect for People’s Rights and Dignity). Beneficence and nonmaleficence (new General Princi- ple A) were previously reflected in the Ethics Code but now emphasize, in greater detail, the goal of assisting without harming those with whom psychologists work. Justice, a new addition to the Ethics Code, is addressed in General Principle D. The principle of justice emphasizes the right to equality in access to psychological services and in the nature of the services provided. It also emphasizes for psychologists the importance of ensuring that potential biases and limitations of professional competence do not result in unfair practices. The Ethics Code was reduced from six principles
2 For interested readers, comparisons of the two APA Ethics Codes can be found on the APA Ethics Office Web site at http://www.apa.org/ethics/codecompare/html. The comparisons describe which principles and standards were added, deleted, or incorporated into other areas of the Ethics Code.
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to five. Prior principles, titled “Competence” and “Social Responsibility,” were deleted. Issues of professional competence, on the basis of the underly- ing principle of nonmaleficence, now compose Standard 2 (Competence). Previous content related to social responsibility was incorporated in the Preamble and Introduction.
Ethical Standards
The elimination of a separate group of standards on forensic activities (Standard 7) is of particular significance and interest to psychologists who are involved in forensic practice. Of the five subsections of Standard 7 in the 1992 APA Ethics Code (APA, 1992), four were deleted, and the content related to role clarification was integrated into Standard 3 (Human Rela- tions) in the 2002 Ethics Code. The purpose of deleting Standard 7 was to eliminate the focus on any one specialty area and to keep the focus of the Ethics Code on issues that are relevant to psychology in general. The Ethics Code Task Force intended to make the Ethics Code as generic as possible (Knapp & VandeCreek, 2003). Nevertheless, forensic activities received emphasis in some sections of the 2002 Ethics Code, including Standards 2.01f, Boundaries of Competence; 9.01a, Bases for Assessments; 9.03c, In- formed Consent in Assessments; and 9.10, Explaining Assessment Results. In addition to the Ethical Standards that specifically mention forensic activi- ties, the following changes, outlined in this section and presented in greater detail in subsequent chapters, hold particular relevance for forensic practice.
The manner in which psychologists are to resolve ethical issues was moved from the last standard to the first (Standard 1, Resolving Ethical Issues). This standard is particularly relevant because of the sensitive nature of handling ethical misconduct during the course of litigation. Issues of competence now compose Standard 2 (Competence). The transition of Competence from a General Principle to an Ethical Standard reflects an increased emphasis on the importance of psychologists understanding that attainment of competence is not simply aspirational but is an essential requirement for ethical psychological practice. Attainment of competence in one area of psychology does not imply competence in another. Compe- tence must be established in each area within which forensic psychologists practice and with each population with which forensic psychologists work. Competence must be maintained through continuing education and peer consultation.
Standard 3.10c, Informed Consent, is a new addition to the APA Ethics Code that explains consent obligations when psychological services are court ordered or otherwise mandated. In addition, issues related to informed consent were included, for the first time, in the section on assess- ment. Standard 9.03, Informed Consent in Assessments, describes the con-
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sent process in detail, including exceptions to the need to obtain informed consent. These standards support the obligation of psychologists to attempt to describe to patients and examinees the potential foreseeable uses and implications of treatment records or evaluation results as early in the profes- sional relationship as possible.
Standards addressing multiple relationships (Standards 3.05, Multiple Relationships; 3.06, Conflicts of Interest; and 10.02, Therapy Involving Couples or Families) were clarified in the new APA Ethics Code. Forensic psychologists must refrain from accepting a professional role if it may be reasonably assumed that there is compromised objectivity or some circum- stance that negatively affects the psychologist’s ability to effectively perform professional activities. In addition, the 2002 Ethics Code indicates that multiple relationships that would not be reasonably expected to interfere with professional behavior or result in harm are not unethical (Standard 3.05a).
The 2002 APA Ethics Code includes an increased emphasis on cultural competency in situations in which it has been determined that such compe- tency is essential for effective service delivery (Standard 2.01b, Boundaries of Competence). The new Ethics Code also emphasizes the importance of sensitivity to the difficulties inherent in providing services when language fluency between psychologist and patient or examinee differs. Standard 9.02b, Use of Assessments, requires psychologists to use assessment instru- ments for which reliability and validity have been established with members of the population that the examinee represents. Standard 9.02c, also new, requires psychologists to use measures that are appropriate given the exami- nee’s language preference and competence, unless use of an alternative language is relevant to the evaluation. Standard 9.06, Interpreting Assess- ment Results, states that linguistic and cultural differences must be appropri- ately considered when interpreting results. Throughout Standard 9, the Ethics Code stresses the importance of describing the limitations of one’s interpretations. Standard 9.03, Informed Consent in Assessments, describes the need to obtain informed consent from the examinee regarding the use of an interpreter. Information provided to the examinee includes the possibility that interpretation may result in a degree of imprecision in the evaluation results, and the extent of the imprecision will be greater the more the interpreter and the examinee vary in their dialect or regional nuances. Standard 9.03c also emphasizes the need for psychologists to ensure that interpreters appreciate confidentiality rights and limitations and that they maintain test security.
The 2002 APA Ethics Code includes a significant change to the manner in which psychologists are to handle requests for test data and materials. In the Ethics Code a distinction is made between test data and test materials. Test data (as defined in Standard 9.04a, Release of Test Data)
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refers to “raw and scaled scores, client/patient responses to test questions or stimuli, and psychologists’ notes and recordings concerning client/patient statements and behavior during an examination.” Under the 1992 Ethics Code, psychologists were required to refrain from releasing raw data to anyone (other than the patient or client under certain circumstances) not qualified to interpret or appropriately use the data. Under current guidelines, with a client-patient release, psychologists must provide test data to the client-patient or to anyone identified in the release, unless the psychologist believes that “substantial harm or misuse or misrepresentation” (Standard 9.04a) may result. In Standard 9.11, Maintaining Test Security, test materials are defined as “manuals, instruments, protocols, and test questions.” In contrast to what is required for test data, psychologists are required to “make reasonable efforts to maintain the integrity and security of test materials” (Standard 9.11). Standard 9.04a includes as test data those materials that have examinee responses written on them. That is, test materials that must be safeguarded convert to test data that can generally be released (with client consent) once the psychologist or examinee has written responses on them (Behnke, 2003).
The 2002 APA Ethics Code includes a section on record reviews and opinions proffered without the psychologist having examined the subject of the opinion (Standard 9.01c, Bases for Assessments). When an opinion is offered in the absence of an examination, the psychologist must explain the reasons for not conducting an examination and describe the information upon which the decisions and opinions were based, including any limitations inherent in the absence of the examination. Standard 9.01c reflects a depar- ture from the 1992 requirement that, with some exceptions, psychologists perform face-to-face examinations when offering diagnostic or evaluative statements or recommendations, particularly in forensic contexts (APA, 1992 [1992 Standards 2.01, Evaluation, Diagnosis, and Interventions in Professional Context; 7.02b and 7.02c, Forensic Assessments; Knapp & Vandecreek, 2003).
RELATED PROFESSIONAL GUIDELINES
As the “Introduction and Applicability” section of the 2002 APA Ethics Code states, “Psychologists may consider other materials and guide- lines that have been adopted or endorsed by scientific and professional psychological organizations” during the process of making decisions about professional behavior. To go a step further, we suggest that forensic psycholo- gists must consider guidelines promulgated within their areas of specialization and appropriately endorsed by recognized organizations leading the field to which they apply. The general nature of the Ethics Code offers a solid
22 ETHICAL PRACTICE IN FORENSIC PSYCHOLOGY
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foundation for many aspects of forensic practice, but more specific application of ethical principles and acceptable practice parameters is required and can be found in a number of publications from APA and other professional organizations. Table 1.1 provides a summary of some of the available guide- lines. Some of these guidelines undergo periodic revision; as a result, psychol- ogists are encouraged to check the Web sites and publications of the sponsor- ing organizations periodically to ensure that they are in possession of the most recent versions of the documents.
The Specialty Guidelines for Forensic Psychologists: A Brief Overview
The SGFP were prepared by the American Psychology-Law Society (APA’s Division 41) and are endorsed by the American Academy of Forensic Psychology (Committee on Ethical Guidelines for Forensic Psychologists, 1991). Although designed to be consistent with the APA Ethics Code, the SGFP were developed to provide more specific guidance to forensic psychologists than was offered in the Ethics Code, The purpose of the SGFP is to improve the quality of forensic psychological service.
The SGFP consist of an introductory section followed by seven topical sections: Purpose and Scope, Responsibility, Competence, Relationships, Confidentiality and Privilege, Methods and Procedures, and Public and Professional Communications. The SGFP provide a useful supplement to the APA Ethics Code. As of this writing, they are undergoing revision and a multiyear approval process. (The most current draft of the SGFP can be found on the American Psychology—Law Society Web site at http://www. ap-ls.org/links/professionalsgfp.html.)
CONSIDERATION OF JURISDICTIONAL LAWS
The Introduction and Applicability section of the APA Ethics Code instructs psychologists to consider applicable laws and psychology board regulations during their ethical decision-making processes. Psychologists should know the source of the jurisdictional regulations that govern their professional conduct, whether it is the Ethics Code, the Canadian Code of Ethics for Psychologists (Canadian Psychological Association, 2000), the Association of State and Provincial Psychology Boards (2005) Code of Conduct, or some other source.
The Health Insurance Portability and Accountability Act
At the federal level, the Health Insurance Portability and Accountabil- ity Act (HIPAA; U.S. Department of Health and Human Services [U.S.
THE INTERFACE OF LAW AND PSYCHOLOGY 23
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THE INTERFACE OF LAW AND PSYCHOLOGY 25
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DHHS], 1996) took effect in April 2003 and has been a source of confusion for forensic psychologists. This legislation was intended to simplify and protect the confidentiality of electronic billing and transmission of health information and to provide increased patient access to their medical records, including patients’ right to amend their medical records to clarify errors. Although those goals may seem logical and straightforward, the legislation evolved into a complex series of administrative rules, with exceptions for certain settings.
Of particular relevance to this chapter is the determination of whether HIPAA applies to forensic services, and if so, to what extent. HIPAA states that information compiled in anticipation of use in civil, criminal, and administrative proceedings is not subject to the same right of review and amendment as is health care information in general (U.S. DHHS, 1996, §164.524(a)(l)(ii)).
Connell and Koocher (2003) opined that forensic practice may not be subject to HIPAA, because (a) forensic services are designed to serve a legal purpose, rather than a therapeutic purpose; (b) forensic services are provided at the request of a party or entity outside the health care system; (c) forensic services fall outside health insurance coverage, because they do not constitute health care; and (d) forensic psychologists do not ordinarily transmit data electronically except in the specific ways for which consent has historically been obtained from the litigant, and (e) no new protections or rights accrue to examinees by way of HIPAA compliance (i.e., no new right of access and amendment of information gathered in anticipation of litigation; U.S. DHHS, 1996, §164.524(a)(l)(ii)).
Legitimate arguments, also noted by Connell and Koocher (2003), posit that forensic practitioners indeed need to become HIPAA compliant. Such arguments include (a) the observation that assessment and diagnosis with respect to an individual’s mental condition or functional status may in fact constitute health care, according to HIPAA; as a result, psycholo- gists who provide forensic assessment services may be considered by HIPAA to be covered entities; (b) to obtain health care information about a litigant from other service providers, forensic psychologists must provide assurance that that the information will be handled in a secure way; and (c) the question of whether forensic psychologists are covered entities will likely fall to case law for resolution, and it may prove less expensive and burdensome to become compliant than to become the case that decides the issue.
When considering the applicability of overlapping state and federal laws, the more stringent of the two applies. With regard to HIPAA, this means that the law that provides the most protection of private health care information applies.
26 ETHICAL PRACTICE IN FORENSIC PSYCHOLOGY
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Conflicts Between Ethics and Law
Jurisdictional laws provide guidelines for professional behavior that ultimately must be followed. However, psychologists also have a duty to pursue the highest standard of conduct, which may require attempts to compromise with legal authorities when the APA Ethics Code requires a higher standard of professional behavior than does the law. The Introduction and Applicability section of the Ethics Code states,
If this Ethics Code establishes a higher standard of conduct than is required by law, psychologists must meet the higher ethical standard. If psychologists’ ethical responsibilities conflict with law, regulations, or other governing legal authority, psychologists [must] make known their commitment to this Ethics Code and take steps to resolve the conflict in a responsible manner. If the conflict is unresolvable via such means, psychologists may adhere to the requirements of the law, regulations, or other governing authority in keeping with basic principles of human rights.
In many instances, efforts to compromise will result both in the legal system receiving the information or action it requires and in the preservation of the integrity of psychological information or techniques. Although all such attempts will not meet with equal success, the attempts themselves help to educate others about the ethical concerns of psychologists and demonstrate the psychologist’s commitment to high practice standards.
A PROPOSED MODEL OF ETHICAL DECISION MAKING IN FORENSIC PSYCHOLOGY
Determining a course of professional behavior that not only avoids ethical misconduct according to an ethics code but also adheres to high aspirational principles requires a commitment to ethical ideals. Determining such a course of action requires access to the necessary tools, and it requires effort and time. Some practitioners may find adherence to the letter of enforceable ethical standards to be sufficient. In our view, however, it is difficult to justify choosing not to pursue the highest standard of ethical behavior available to psychologists. As Knapp and VandeCreek (2003) stated, “Ethics Codes of professions are, by their very nature, incomplete moral codes” (p. 7). Positive ethics requires a shift from an emphasis on misconduct and disciplinary action to an emphasis on the pursuit of one’s highest ethical potential (Handelsman, Knapp, & Gottlieb, 2002). The forensic psychologist must understand not simply that certain practices are unethical but, rather, why they are unethical (Shuman & Greenberg, 1998).
THE INTERFACE OF LAW AND PSYCHOLOGY 27
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Ethical-decision-making models for psychologists have previously been provided (e.g., Canadian Psychological Association, 1991; Haas & Malouf, 2002; Kitchener, 2000; Koocher & Keith-Spiegel, 1998). Knapp and VandeCreek (2003) reviewed these models and identified five common steps: (a) identification of the problem, (b) development of alternatives, (c) evaluation of alternatives, (d) implementation of the best option, and (e) evaluation of the results. Knapp and VandeCreek also noted that these models, although valuable, do not adequately consider emotional and situa- tional factors or the need, in some situations, for an immediate response. They proposed that when considering emotional and situational factors, psychologists engage in self-care activities, become aware of when their own emotional needs begin to interfere with sound professional judgment, and be alert to situational pressures. To best address the need for urgent ethical decision making, they recommended that psychologists anticipate the types of problems that may be encountered in one’s practice and then develop decision-making steps for such problems that can be implemented when needed.
The eight-step model proposed in this text incorporates the five com- mon steps of the models reviewed by Knapp and VandeCreek (2003) and integrates the decision-making components that were found to be lacking in those models. This model was designed to provide forensic psychologists with a means to resolve ethical challenges. Given the complexity of many ethical challenges and the range of information and consultation that may be needed to determine an appropriate course of action, it may be beneficial, as Knapp and VandeCreek suggested, for practitioners to anticipate potential ethical conflicts and determine a priori optimal courses of action. The steps of the forensic psychology ethical-decision-making model are as follows: (a) identify the problem, (b) consider the significance of the context and setting, (c) identify and use ethical and legal resources, (d) consider personal beliefs and values, (e) develop possible solutions to the problem, (f) consider the potential consequences of various solutions, (g) choose and implement a course of action, and (h) assess the outcome and implement changes as needed.
Identify the Problem
Some professional activities considered by, or requested of, forensic psychologists are clearly appropriate and ethical, and some are clearly not. However, many options considered by practitioners are ambiguous or present complex layers to be considered. Forensic psychologists must keep in mind that a wide range of potential behaviors may be appropriate when considering courses of action and when reviewing the work of colleagues. A distinction may need to be made between ethical, legal, moral, and professional perspec-
28 ETHICAL PRACTICE IN FORENSIC PSYCHOLOGY
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tives. These overlapping concepts may need to be parsed out to clarify the ethical problem or dilemma.
Clearly ethical or unethical behaviors need little explanation or discus- sion. If one engages in blatantly unethical behavior, one risks a host of negative consequences. If one observes such behavior in a colleague, a course of action must be taken to remedy the situation. However, in the less clear circumstances often encountered in practice, a psychologist may encounter a request or a situation that arouses feelings of uneasiness, a sense that something may be wrong with the situation. In such situations, the psycholo- gist must consider possible reasons for the unease and attempt to narrow down the possibilities, eventually focusing on those elements of the situation that are contributing to the initial feelings of discomfort. For example, a psychologist treating a patient who sustained posttraumatic stress in a motor vehicle accident may be called by the patient’s attorney with a request for a report that describes the patient’s symptoms, degree of disability, and link between the accident and the posttraumatic stress. The psychologist may be conflicted about the appropriateness of writing such a report. A request such as this that may seem straightforward on the surface may involve a host of issues that would need to be considered by the psychologist. The psychologist would benefit from determining, as specifically as possible, what it is about the situation that is troubling. If such a situation had been considered in advance, the psychologist would likely know exactly how to respond to the request.
Consider the Significance of the Context and Setting
Forensic psychologists work in widely varying settings and contexts. Professional activities that are appropriate in one forensic setting or context may be inappropriate in others. Consequently, some professional guidelines that are relevant in one setting or context may be less relevant or wholly inapplicable in other situations. For example, a forensic psychologist’s fee structure may differ, quite appropriately, depending on the nature of the services provided. To the extent that the fee structure may compromise objectivity, the distinction made regarding context is of ethical importance.
In any forensic role there may be a number of individuals or institutions to whom or to which obligations are owed. Although this will differ by context, some possible parties to whom obligations may be owed include the following: referral source, client, examinee, patient, guardians of examinee or patient, employing institution, profession of psychology, trier of fact, court, legal system, and society at large. In some contexts, these parties may overlap, whereas in others they are distinct.
Just as there exists a range of individuals or institutions owed obliga- tions, there is a range of obligations that may be owed. In general terms,
THE INTERFACE OF LAW AND PSYCHOLOGY 29
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the forensic psychologist has an obligation to provide competent services that advance the welfare of the individuals and institutions to which obliga- tions are owed, without bringing unjust harm to the other individuals and institutions involved. The nature of the harm to be avoided has been specified as unjust harm. This clarification is provided because, given the adversarial nature of the legal system, many of the opinions offered or determinations made by psychologists may be considered unfavorable and thus harmful to one of the parties involved in a case. Such opinions or determinations are only unethical if they were reached in an inappropri- ate manner.
Identify and Use Ethical and Legal Resources
This step may be the most challenging in the ethical-decision-making process. There exist a number of published resources, sometimes offering conflicting guidance, relevant to ethical issues encountered in forensic psy- chology. Nevertheless, by using both the published and interpersonal re- sources described in this section, the forensic psychologist can likely find solid footing when determining courses of action that are consistent with ethical practice.
The various resources are presented here in an order consistent with a deductive or top-down method of ethical reasoning and decision making (Beauchamp & Childress, 2001). This method involves applying a general rule to a specific case. First, assess the foundational values. General bioethical principles, the ethics codes of professional organizations, and jurisdictional laws all reflect the values of a society. Examples of North American values include the right to self-determination and the right to adequate health care. These values underlie general bioethical principles, such as respect for a client’s autonomy and the need to “do no harm” to the parties served by the health care professional. Determining the values underlying a given ethical standard or law will help to clarify the spirit behind the letter of the standard or law and, by extension, will help to clarify the appropriate course action (Behnke et al., 2003). Behnke et al. (2003) advised that an ethical dilemma be approached by first asking the following questions: “What values are at issue? And how can I act consistent with those values?” (p. 225).
Second, determine the applicable bioethical principles. Beauchamp and Childress (2001) presented a model of bioethical principles reflecting society’s fundamental values. Their model, which has been widely adopted across health care disciplines, posits four core principles: autonomy, benefi- cence, nonmaleficence, and justice. As previously indicated in the chapter, these principles are clearly evident in the 2002 APA Ethics Code.
Applying the Beauchamp and Childress (2001) model to ethical chal- lenges in forensic psychology can be of considerable value in determining
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an appropriate course of action. However, dilemmas emerge or increase in complexity in situations in which one value is pitted against another. For example, from an ethical perspective, releasing raw test data to a patient may, depending on the context, be consistent with respecting the patient’s autonomy, but it may also result in psychological harm to the patient and harm to society at large depending on the uses to which the data are put. Weighing the relative importance of the principles involved and attempting to strike a balance that satisfies the greater good is the task of the forensic psychologist. Of course, such determinations need not, and often should not, be made in isolation.
Third, review relevant professional ethics codes. Ethics codes are devel- oped to reduce the vagueness inherent in professional values (Beauchamp & Childress, 2001). The APA Ethics Code provides guidance for ethical psychological practice. Whereas the Ethics Code’s General Principles are aspirational in nature, the Ethical Standards provide more concrete dicta for ethical practice and should be consulted to achieve an ethical solution. The Ethical Standards are the enforceable minimum level of ethical conduct for psychologists who are APA members or whose state boards have adopted the Ethics Code as the professional regulations or rules of practice for licensed psychologists.
Fourth, psychologists must be familiar with the jurisdictional laws that regulate the profession of psychology where they practice. State and federal laws offer specific guidance on how to manage fundamental aspects of psycho- logical practice; however, more specific practices pertaining to psychological specialty areas may not be adequately addressed by statutory or case law.
Fifth, refer to position statements (i.e., white papers) of relevant profes- sional psychological associations. These position statements offer clarifica- tion of details of practice areas that are beyond the scope of an ethics code. Many of these statements are readily available from the Web sites of the organizations authoring or endorsing them. The SGFP, currently under revision, provide ethical guidance specific to forensic activities (Committee on Ethical Guidelines for Forensic Psychologists, 1991).
Sixth, review journal articles, books, and book chapters: “Theory and principle are only starting points and general guides for the development of norms of appropriate conduct. They are supplemented by paradigm cases of right action, empirical data, organizational experience, and the like” (Beauchamp & Childress, 2001, p. 2). General ethics texts provide coverage of ethical issues of concern to forensic psychologists and may offer vignettes specific to forensic practice. Forensic psychology books cover, to varying degrees, many of the practice issues that are of ethical concern, and some provide specific ethics chapters. In addition, texts from related psychology specialty areas, such as child and family psychology and neuropsychology, include chapters that address forensically relevant ethical issues. Thus, there
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exist many published resources that can assist the forensic psychologist who is anticipating or experiencing ethical challenges.
Seventh, consult colleagues. Such consultation may occur informally through discussions with colleagues and formally through contact with ethics committees, or both. The experiences of colleagues who have faced similar ethical challenges and the collective knowledge and experience of ethics committees may provide invaluable assistance to the psychologist facing an ethical dilemma. Consultation with others in one’s own jurisdiction may offer the advantage of sensitivity to both the legal and ethical aspects of a case. However, one might also need, in certain circumstances, to seek consultation from outside the geographic area to preserve confidentiality of case involvement or of details of the matter. It is useful to establish several collegial consultative relationships and also to seek expertise to address the relevant issues of the matter at hand. The consultation may be formalized, even on a case’by-case basis, by establishing a consultation agreement, retaining the consultant at an hourly fee, and requesting that the consultant maintain a record of the consultation. Such consultation can then be identi- fied, if later needed, as one of the ways the psychologist strived to meet the ethical challenge in a professional and thoughtful way.
Consider Personal Beliefs and Values
In addition to, or at times in contrast to, the collective values of a society that were previously described, the psychologist may endorse a partic- ular value to some degree along a continuum. Forensic psychologists have a responsibility to evaluate the degree to which their personal moral positions are consistent with those of the larger society and the organizations with which they are involved. To the extent possible, they should attempt to understand their biases and the potential impact that their values and biases have on their professional and ethical decision making. Psychologists may also draw on personal values other than those reflected in a model of professional ethics, such as their religion or cultural background. It is criti- cally important that forensic psychologists, whose work often involves mat- ters laden with moral and values implications, attempt to understand the potential influences of their personal beliefs on their professional behavior.
Develop Possible Solutions to the Problem
When one is faced with an ethical dilemma, inaction is typically not an ethical option. The legal counsel that one may obtain may address the issue from a risk-management perspective, arguing for temporary inaction or for avoidance of efforts at resolution that might incur liability, whereas the principles by which the psychologist practices may argue for action that
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remediates potential suffering on the part of a party in the situation. The complex dilemmas that pit one ethical principle against another, or ethical against legal considerations, may tax the most thoughtful practitioner.
Generating a list of possible solutions requires integration of the sig- nificance of the context, information obtained from available resources, and personal beliefs and values. In some situations, the best course of action may be clear upon such consideration. However, in other ethically challenging situations, practitioners may need to generate a number of potential solutions in as much detail as possible. Consider the example of releasing raw test data to an opposing attorney. When provided with an appropriate client release, there are a variety of options that the forensic psychologist should consider. Some of these options include (a) immediately releasing the data as requested, (b) refusing to release the data on the basis of published professional guidelines, (c) offering to release the data to a psychologist retained by the opposing attorney, (d) requesting a court order to release the data, and (e) requesting a protective order from the court.
Consider the Potential Consequences of Various Solutions
Once possible solutions to the ethical problem have been developed, potential consequences must be considered. Both positive and negative consequences must be anticipated. Just as the relative importance of underly- ing values was assessed, the potential positive and negative consequences of each action may need to be weighed to determine the best course of action. In the example of releasing raw data, a variety of potential conse- quences emerge. Spending time and resources striving to safeguard the test data, which includes the materials on which responses are recorded, may seem futile in the adversarial forum where rights to discovery of such materi- als are legally defined. In contrast, the psychologist may believe that it is ethically preferable to minimize the opportunity for nonpsychologists to get access to test questions and stimuli, thus justifying the expenditure of time and resources. However, by taking steps that may be perceived as obstructive or oppositional, the psychologist may fear repercussions such as antagonizing the court or the attorneys, thereby reducing good will with those with whom one wishes to work. Thus, the potential consequences may extend beyond solely ethical considerations to those with business and other implications. Forensic psychologists must consider potential consequences, weigh their options, and pursue the highest ethical option available.
Choose and Implement a Course of Action
Once potential solutions have been examined and consequences con- sidered, the practitioner must select and implement the most appropriate
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course of action. The timing of the action may be critical to its success. Depending on the issues involved and the context, the course of action may need to occur quickly or may need to be delayed. Again using the example of a request for test data, the request may have attached to it an instruction to delay release for a specified period of time, to provide counsel time to consult with the litigant, if necessary, and to file a motion to quash the request or subpoena. Consultation with colleagues may be particularly valuable in weighing the best time to respond to situations in which timing must be taken into account.
Assess the Outcome and Implement Changes as Needed
With many difficult ethical decisions, the chosen action will likely be unsatisfactory to one or more of the parties involved. The psychologist should be prepared to receive and respond to feedback about the decisions made and actions taken. Similarly, the psychologist must evaluate the effec- tiveness of his or her own decision or action and implement changes as needed.
APPLYING APPROPRIATE RISK-MANAGEMENT STRATEGIES IN FORENSIC PRACTICE
In 1984, Alan Stone wrote, “The philosophers say life is a moral adventure; I would add that to choose a career in forensic psychiatry is to choose to increase the risks of that moral adventure” (p. 73). Psychologists engaging in forensic professional activities enter an environment with moral, ethical, and professional challenges that are often quite different from those found in clinical practice. These challenges and their associated potential ethical pitfalls put the unprepared psychologist at considerable risk for profes- sional misconduct. A significant contribution to decreasing one’s vulnerabil- ity to professional misconduct can be made by striving to understand the laws that govern one’s practice. As Sales and Miller (1993) indicated, however,
Most professionals do not know about, much less understand, most of the laws that affect their practice, the services they render, and the clients they serve . .. not knowing about the laws that affect the services they render can result in incompetent performance of, and liability for, the mental health professional, (p. 1)
Continuing education in the areas of one’s psychological specialty, the laws that regulate one’s practice, the interface of the specialty practice with the legal system, and risk management itself are all necessary for maximally reducing the likelihood of engaging in professional misconduct. However,
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knowledge is not enough. Forensic psychologists must be committed to applying that knowledge in a manner that is consistent with ethical practice. Where professional competence has been established and is being maintained, the greatest risk to ethical misconduct in forensic psychology seems to be the potential influence of bias. Bennett, Bryant, VandenBos, and Greenwood (1990) stated, “Too often, we fail to evaluate our own performance, attitudes, behaviors, and work skills objectively in terms of the ethics and practice guidelines of the profession” (p. 7). For example, a strong belief in a particular methodology or symptom etiology may over- shadow objectivity (Bennett et al., 1990). Bias in this context, however, addresses not just a philosophical preference for one aspect of the professional literature or another but also the intentional modification of behaviors, written opinions, or testimony designed solely to support the position of the retaining party. Bias can exert its influence even when the psychologist is well armed with information about the professionally correct course of action.
To justify one’s positions and behaviors, clear and detailed documenta- tion of the rationale should be maintained. As Behnke et al. (2003) stated, “the process by which a clinician decides what to do becomes as important as the decision itself (p. 13). Documentation that the psychologist understood the values at stake and followed a rational process of ethical decision making will, if necessary, inform any outside reviewer that the ethical challenge was addressed in a thoughtful and systematic manner. Such documentation of the decision-making process will be the forensic psychologist’s best protec- tion against liability (Behnke et al., 2003).
As G. W. Lynch (1993) stated, “Historically, there has been tension, and indeed antipathy at times, between attorneys and mental health profes- sionals” (p. 7). Nevertheless, when issues of professional liability are in doubt, psychologists would be well served to consult both their own attorney and their professional liability insurance carrier. In considering the consulta- tion, it is essential to keep in mind that the interests of the attorney or insurance carrier may overlap with one’s own, but in some respects, may not, and at the end of the day, one must be comfortable that the action to be taken reflects the values and ethics held to be meaningful.
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