Practice and Professional Issues in Forensic Neuropsychology

August 3, 2006August 3, 2006

Sources of Referrals Retained by individual attorneyRetained by individual attorney

communication primarily to one sidecommunication primarily to one side can usually (but not always) be discovered by can usually (but not always) be discovered by

other sideother side role is varied, depending on referralrole is varied, depending on referral

Retained by courtRetained by court communication equally directed to both sidescommunication equally directed to both sides technically, opinion is for trier of facttechnically, opinion is for trier of fact

HybridHybrid

Initial Contacts agreeagree as to the business aspects of as to the business aspects of

your activityyour activity feesfees retainer/prepaymentretainer/prepayment letter of protection - best to avoidletter of protection - best to avoid

clarify clarify your roleyour role obtainobtain the information you need the information you need educate educate as to your capabilitiesas to your capabilities discussdiscuss your modus operandi your modus operandi

Practice and Professional Issues

Third party observersThird party observers Release of test dataRelease of test data Payment for forensic servicesPayment for forensic services Changing rolesChanging roles Disclosing tests beforehandDisclosing tests beforehand Celebrity death matchesCelebrity death matches

Practice Issue #1: Presence of Practice Issue #1: Presence of Third Third

Parties During EvaluationParties During Evaluation Case Scenario: : you are retained to perform a

neuropsychological evaluation and the opposing attorney wants to sit in during the evaluation with a video camera and a court reporter

WHAT ARE THE ISSUES? WHAT SHOULD YOU DO?

Issues public domain release validity concerns demand characteristics impeachment and accuracy concerns

Practice Issue #2: Release Practice Issue #2: Release of Psychological Dataof Psychological Data

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

WHAT ARE THE ISSUES? WHAT DO YOU DO?

ISSUES: public domain issuepublic domain issue misuse by untrained partiesmisuse by untrained parties copyright infringementcopyright infringement

Sharing of Raw Data Raw data governed by several doctrinesRaw data governed by several doctrines

APA ethical principlesAPA ethical principles HIPAAHIPAA Copyright issuesCopyright issues

See (D40/APPCN/AACN) test release documentSee (D40/APPCN/AACN) test release document Insist on releasing to licensed psychologist Insist on releasing to licensed psychologist

(resist other MHP)(resist other MHP) If court ordered, request it to be sealed or “in If court ordered, request it to be sealed or “in

camera”camera”

Attix, et al., in press

Flow Sheet to Guide Test Release Decision

Making

Practice Issue #3: Charging for Forensic Evaluations

Case Scenario: You set up a fee structure that charges $500/hour for forensic work but only $250 for nonforensic work

WHAT ARE THE ISSUES WHAT DO YOU DO?

ISSUES Justification for fee differential

Practice Issue #4: Financial Arrangements

Case Scenario: An attorney attempts to refer you a case and guarantees payment out of the case’s settlement

WHAT ARE THE ISSUES WHAT DO YOU DO?

ISSUES

Makes you invested in a certain outcome Places you in a nonpay situation for the duration of the case

Practice Issue #5: Changing Roles

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

WHAT ARE THE ISSUES WHAT DO YOU DO?

ISSUES

Transition from advocacy to expert role Therapy information protected

Practice Issue #6: Giving the examinee advanced notice

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..

WHAT ARE THE ISSUES? WHAT DO YOU DO?

ISSUES: Allows the plaintiff to prepare for examination Allows plaintiff’s expert to object to individual tests, putting each test

‘on trial’

Practice Issue #7: Critiquing Practice Issue #7: Critiquing Another PsychologistAnother Psychologist

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

WHAT ARE THE ISSUES? WHAT SHOULD YOU DO?

ISSUES

Misdirects appropriate source of corrective action Public perception of profession Arguing for vs. arguing against a conceptualization

Evaluation Proper Keep to the referral questionKeep to the referral question, but let your , but let your

judgment be your guidejudgment be your guide Document everythingDocument everything, including ‘trivial’ , including ‘trivial’

matters, telephone contacts, correspondence, matters, telephone contacts, correspondence, etc., because you may be asked to testify etc., because you may be asked to testify about this, or reconstruct it, laterabout this, or reconstruct it, later

Retain everything Retain everything until case is over (even if until case is over (even if your office floods, like mine has!)your office floods, like mine has!)

Keep a running account of timeKeep a running account of time spent as you spent as you gogo

Evaluation Proper Develop rationale for your testing approach:Develop rationale for your testing approach: know know

specifically why you have selected particular tests specifically why you have selected particular tests and deleted others; use background information from and deleted others; use background information from this course as a guide; know as much as you can this course as a guide; know as much as you can about test operating characteristicsabout test operating characteristics

Be psychometric-savvy:Be psychometric-savvy: keep a norms notebook, a keep a norms notebook, a reprint file, or other compendium of data to assist you reprint file, or other compendium of data to assist you in report preparation and/or testimony (but you may in report preparation and/or testimony (but you may not want to bring this to the depo!!)not want to bring this to the depo!!)

Traveling vs. receiving patient:Traveling vs. receiving patient: know, and think, know, and think, about the difference between home and away gamesabout the difference between home and away games

Reports Written or not? Know ahead of timeWritten or not? Know ahead of time Comprehensive format with sectionsComprehensive format with sections

document opening statements and agreementsdocument opening statements and agreements itemize data relied uponitemize data relied upon describe findingsdescribe findings offer psycholegal formulationoffer psycholegal formulation simplify language; remember your audiencesimplify language; remember your audience

Routing of reportRouting of report

Oral Testimony Qualifying as expertQualifying as expert; stipulation; voire dire; stipulation; voire dire Conferences – issues and pitfallsConferences – issues and pitfalls Deposition and exhibitsDeposition and exhibits

direct examinationdirect examination cross examinationcross examination

Sharing or submitting raw dataSharing or submitting raw data Trial testimonyTrial testimony Settlement without trial/depositionSettlement without trial/deposition

Forensic Self-Assessment

DecideDecide, for yourself, how much you like, and , for yourself, how much you like, and will invite, forensic referralswill invite, forensic referrals

ImmersionImmersion: how forensic neuropsychology is : how forensic neuropsychology is like functional magnetic resonance imaginglike functional magnetic resonance imaging

Self-regulationSelf-regulation of referral sources of referral sources Financial Financial dependencydependency and independence of and independence of

opinionopinion Role of Role of board certificationboard certification

Forensic Self-Development

Role of Role of sciencescience in forensic in forensic evaluation is critical and evolvingevaluation is critical and evolving

Experience and knowledgeExperience and knowledge are are both importantboth important

Advocate or informantAdvocate or informant?? Knowing your Knowing your audienceaudience Clarify your valuesClarify your values