Baker & Gottlieb 2023 navigating legal system.pdf

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Practice Innovations © 2023 American Psychological Association 2023, Vol. 8, No. 3, 240–248 ISSN: 2377-889X https://doi.org/10.1037/pri0000218 Navigating the Maze: How Clinicians Can Better Cope With the Legal System Eva Baker1 and Michael C. Gottlieb2 1 Department of Social and Health Services’ Behavioral Health Administration, Office of Forensic Mental Health Services, Tacoma, Washington, United States This article is intended solely for the personal use of the individual user and is not to be disseminated broadly. 2 This document is copyrighted by the American Psychological Association or one of its allied publishers. Independent Practice, Dallas, Texas, United States Clinicians are not trained to work within the legal system, and the thought of becoming professionally involved in it can cause much anxiety. In this article, we select common examples from civil, criminal, family, and immigration law where practitioners may find themselves unintentionally involved in legal proceedings, and how they may avoid or cope with them in a professional manner. We conclude with general recommendations. Clinical Impact Statement Clinical practitioners are generally not familiar with forensic work or the rules that govern it. When they find themselves involved in legal matters, they can become dis- tressed and may be prone to errors. We discuss common scenarios where these situ- ations may arise and offer concrete recommendations regarding their management. Keywords: risk management, forensic psychology, clinical psychology, ethics, boundaries of competence The first uses of forensic psychology can be Sijtsema, 2021). In order to provide more traced to Ancient Greece and India; however, in guidance to improve the services of forensic psy- the United States, the field began to grow rapidly chological services, the American Psychology- in the late 1800s (Garofalo & Sijtsema, 2021). Law Society (Division 41) and the American In the 1900s, forensic psychology continued to Academy of Forensic Psychology collaborated develop once Hugo Munsterberg began writing to create the first specialty guidelines for forensic about the significance of psychology and the law psychologists in 1991 (Otto & Heilbrun, 2002). and after the vital role psychologists played in After several drafts over the course of the next testimony during Brown v. Board of Education 20 years, the guidelines were revised, and the (Garofalo & Sijtsema, 2021; Weiner & Otto, Specialty Guidelines for Forensic Psychology 2014). Since then, the area has burgeoned and (SGFP) was officially adopted by the American the first formal professional organization for Psychological Association (APA) in 2011 and forensic psychologists was created in 1969, the published in 2013 (Weiner & Otto, 2014). American Psychology-Law Society (Garofalo & According to Weiner and Otto, the term foren- sic psychology refers “broadly to the production of psychological knowledge and its application to the civil and criminal justice systems” (2014). Eva Baker https://orcid.org/0000-0002-5019-8022 While forensic psychology is probably best This article is intended as general information and is not known by its practitioners who often gain noto- intended to offer legal advice. For individual circumstances, one should consult a risk manager or an attorney. The authors riety due to their performance in high-publicity have no known conflict of interest to disclose. trials, as a practice area, psychologists may Correspondence concerning this article should be work in a variety of different roles and settings. addressed to Eva Baker, Department of Social and Health Forensic psychology consists of several major Services’ Behavioral Health Administration, Office of Forensic Mental Health Services, 1949 South State Street, areas (legal psychology, correctional psychol- Tacoma, WA 98405, United States. Email: eva.baker@dshs ogy, police psychology, and criminal psychology),.wa.gov and (clinical) forensic psychologists may work in 240  NAVIGATING THE MAZE 241 criminal, civil, family, or administrative law such as The SGFP contain 11 different general guide- immigration (Weiner & Otto, 2014). Researchers lines, each containing multiple subsections, which from a variety of areas study issues that relate to we briefly review below. As explained by S. A. legal matters such as eyewitness testimony, com- Greenberg and Shuman, one of the most crucial petence of juveniles, investigative interviews, hu- differences between a forensic psychologist and man memory, children’s memory, pedophilia, a clinician is the definition of the client (1997). and false confessions, to mention only a few. When working as a clinician, the client is almost Due to the increased popularity, specialized always the person being seen for therapy or assess- training in forensic psychology has also increa- ment services and to whom the clinician is ethically sed. There are now master’s programs dedicated and fiduciarily obligated. However, as a forensic This article is intended solely for the personal use of the individual user and is not to be disseminated broadly. to forensic psychology, clinical psychology doctor- psychologist, the client is almost never that person; This document is copyrighted by the American Psychological Association or one of its allied publishers. ate programs that have a special emphasis on for- instead, the client is most likely an attorney, a court, ensic psychology, and numerous internship and or an employer who is retaining your services such postdoctoral positions are now available around as a police or fire department. the country (Otto & Heilbrun, 2002). While popu- Given this fundamental difference, privacy, con- lar culture and the media have contributed to its rise fidentiality, and privilege described in Guideline 8 in popularity, financial incentives have also led to are important concepts that a clinician must under- some mental health practitioners to dabble in foren- stand in order to best navigate a forensic role. sic work (Woody, 2009; Wygant & Lareau, 2015). For example, in a clinical setting, the data, results, However, the allure of potential financial gain may and related work product (e.g., therapy notes, treat- blind clinicians to the crucial differences between ment plan, testing results, etc.) while confidential, the two roles. In the next section, we will briefly can be legally obtained by the client. Similarly, review some of these differences. a clinician must wait for their client to waive their right (unless ordered by a court) in order to reveal An Overview of Differences confidential information. However, in a forensic setting, these concepts are governed by the retain- One of the more important differences between ing party, not the person being evaluated. As a forensic and clinical roles is understanding conflict result, learning which parties are authorized to of interest and relationships. This is an area that has have access to relevant information or to whom been covered extensively in many articles, most you may release information to are imperative. notably by S. A. Greenberg and Shuman (1997). Therefore, when performing a forensic evalua- In their influential work, they discuss 10 different tion one of the most important procedures is the principles that underlie why combining therapeutic evaluator providing a full and accurate informed and forensic roles can be extremely problematic, consent/notification of person’s rights to ensure and they warn against engaging in dual clinical that the evaluee understands the nature and pur- and forensic roles (1997). Some of the differences pose of the evaluation and how the information discussed include definition of the client, the rela- will be used. This is vital since the informed con- tionship between the evaluator and evaluaee sent process and rules of confidentiality can be (adversarial and objective vs. therapeutic and sup- quite different depending on whether the eval- portive), the goals of the psychologist during the uation is court-ordered, requested by a lawyer, evaluation (advocating for the client vs. advocat- requested by an employer, and in what jurisdiction ing for the data and their opinion), the scrutiny the evaluation is taking place. As an example, applied to the data gathered (trusting patient states may have different rules regarding immu- provided information vs. gathering collateral nity for statements made during competency eval- information to substantiate one’s data), and the uations, which may impact a defendant’s level of competencies possessed by the psychologists cooperation during an interview. Providing these (therapy/treatment competence vs. psycholegal details during the informed consent process at and forensic evaluation knowledge). Given the the outset of the interview is essential to ensure importance of these distinctions, it is no surprise the evaluees understand their rights during the that the SGFP highlighted the importance of evaluation and to maintain your ethical and legal avoiding conflicts of interest (APA, 2013, obligation. Guideline 1.03) in the first guideline and clarifica- In addition to the differences at the outset, foren- tion of relationships in Guideline 4 (APA, 2013). sic psychologists may proceed to interact with the  242 BAKER AND GOTTLIEB person they are evaluating in a significantly differ- evaluations (Wygant & Lareau, 2015). Specific ent manner. When treating or evaluating clients, diagnoses may be central in some cases (e.g., clinicians are trained to approach their client in a intellectual disability in death penalty cases or supportive and empathetic manner, to rely on the posttraumatic stress disorder [PTSD] in civil litiga- information given to them with little scrutiny, tion) and psychological testing can be a major focal and to advocate for them while maintaining a ther- point. In such cases it is imperative that the practi- apeutic and helpful relationship. Therapists may tioner understand which tests will produce both seek collateral information, but when they do, valid and relevant data that can form the basis for they must seek permission from the client for the an opinion. However, in other cases (e.g., compe- purpose of providing greater diagnostic clarity tency to stand trial), a specific diagnosis is far less This article is intended solely for the personal use of the individual user and is not to be disseminated broadly. and assisting in treatment planning. important than describing the particular mental This document is copyrighted by the American Psychological Association or one of its allied publishers. This process is entirely different in a forensic health symptoms present which interfere with the context where forensic psychologists use multiple defendant’s competency. Regardless of the psy- sources of information and seek collateral sources cholegal question at hand, if testing is used, one to corroborate or contradict important self-report should ensure the measure has established validity data obtained (see SGFP Guideline 8 Privacy, and reliability, evidence of usefulness, and appro- Confidentiality, and Privilege and Guideline 9 priate norms. Methods and Procedures). There is major excep- As previously mentioned, forensic evaluations tion to this model where, for example, forensic entail a method of gathering information to answer psychologists may complete a competency eval- a specific psycholegal question, which is inher- uation relying solely on records and form an ently different from that of clinical evaluations. opinion without any self-report data if the Guideline 2 (Competence) clearly discusses the defendant chooses to exercise their right to not importance of determining, gaining, and maintain- cooperate with the evaluation interview. Best ing one’s competence in the forensic area (APA, practices for offering an opinion of a person 2013). At a minimum, one should have a reason- not personally examined by a practitioner are spe- able knowledge and understanding of how the cifically addressed by the SGFP. Guideline 9.03 legal system works including laws, rules, and prec- states forensic practitioners should only do so edents in addition to the psycholegal and legal “when they have sufficient information or data concepts in the state or region where one practices. to inform an adequate foundation for those opin- It is critical that a practitioner understands these ions” and “make clear the impact of this limitation rules as they inform the data one decides to gather, on the reliability and validity of their work” (APA, including the relevance or importance of psy- 2013). chological testing, in order to form a data-based Given the variety of sources used in forensic opinion which may be later scrutinized through evaluations, proper documentation of records testimony. reviewed, in addition to documenting attempts to obtain additional records, is critical (APA, Hearsay and Expert Testimony 2013). Notably, since the client is not the person being evaluated, a forensic psychologist does not Psychologists from a variety of specialties may need to seek permission from the evaluee and be called to testify, but there is a distinct differ- may be given access to records by the court or ence between testifying as a fact witness, a treat- their attorney. Furthermore, unlike an attorney ing expert, and as a forensic expert (for details, or clinician who advocates for their client’s best see APA, 2013; Guidelines 2.05, 4.02.02, & interest, a forensic psychologist is an advocate 11.04). The Federal Rules of Evidence dictate for their opinion based on the data they collected the requirements for the different witness types. and not the evaluee. This position is especially For example, Federal Rules of Evidence 701 important in order to avoid the appearance of states that a fact witness (lay witness): bias and being seen as a “hired gun” (Wygant & Lareau, 2015). Is limited to those opinions or inferences which are While clinicians often gather data to assist (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness’ in forming diagnostic impressions or treatment testimony or the determination of fact in issue, and planning, in forensic contexts, addressing the (c) not based on scientific, technical, or other specialized psycholegal question(s) is paramount in forensic knowledge.  NAVIGATING THE MAZE 243 Simply, a fact witness is one who testifies (e.g., the psychological impairment resulted from about what they have seen, heard, or otherwise the alleged abuse), as this would be beyond the observed (McKissock, 2022). In contrast, when therapist’s boundaries of competence and is best testifying as an expert, the primary objective is left to forensic experts. In sum, a clinician’s role to provide testimony to help the court make a as a treating expert is to act within the best interest decision (Woody, 2016). In order to be an expert of their patient and advocate on behalf of their cli- witness, that person must have “specialized knowl- ent without testifying to the specific psycholegal edge beyond that of the average person that may issue (e.g., risk of reoffending, competency, per- qualify them to provide opinions, as well as sonal injury) since such an opinion would be facts, to aid the court in reaching a just conclu- beyond their boundaries of competence (APA, This article is intended solely for the personal use of the individual user and is not to be disseminated broadly. sion” (S. A. Greenburg & Shuman, 1997). 2017, Section 2.01) and a violation of the princi- This document is copyrighted by the American Psychological Association or one of its allied publishers. Therefore, psychologists need to be aware of the ple of scientific responsibility (APA, 2017, type of witness they will be and the statements Section 2.04). that will be admissible in a courtroom. The admissibility of expert testimony is deter- Generally speaking, hearsay is not admissible as mined by two major standards: Frye or Daubert, evidence in court as a result of the Confrontation depending on the jurisdiction of the case. The Clause of the U.S. Constitution, which protects Frye Standard, stemming from the decision of the right of a criminal defendant to be confronted Frye v. United States (1923), held that the admis- by their accusers in Court. Hearsay is information sibility of expert testimony is based on whether about a statement, either oral or written, that was the expert’s opinion was derived from a proce- made out of court and offered as evidence by a per- dure, technique, or principle that is generally son other than the witness. For example, if you wit- accepted as reliable in that particular scientific nessed a car accident, you could testify about what community. The Frye Standard held as the federal you witnessed, but it would be hearsay if you tes- standard for 70 years until the case of Daubert tified about what another witness told you about v. Merrell Dow Pharmaceuticals Inc., which the accident. changed the standard of scientific evidence for While a psychologist is testifying about state- expert testimony (Woody, 2016). In the Daubert ments made out of court by their client or someone ruling, Frye became superseded by Rule 702 of else (e.g., collateral sources), psychologists who the 1975 Federal Rules of Evidence, which testify as expert witnesses are held to a different emphasized the importance of scientific criteria standard. This is because, according to Federal for expert testimony (Woody, 2016). While Rules of Evidence Rule 703, “an expert may eight states still currently use the Frye base an opinion on facts or data in the case that Standard, the Daubert Standard is the current the expert has been made aware of or personally federal standard and used in the other 42 juris- observed”; therefore it is an exception to hearsay dictions. According to the Daubert Standard, (2010). As previously discussed, a clinician has there are five factors to consider regarding the a fiduciary relationship to their client and will admissibility of expert testimony: (a) whether rely primarily on the patient’s self-report of their the theory or technique in question can be and subjective experience without (much) attempt to has been tested, (b) whether it has been subjected substantiate or corroborate what they have said. to peer review and publication, (c) its known or As such, a clinician testifying as a treating expert potential error rate, (d) the existence and mainte- is perfectly within their right to testify regarding nance of standards controlling its operation, and the symptoms their client reported during therapy, (e) whether it has attracted widespread acceptance observations the clinician has made about their within a relevant scientific community. Notably, client during treatment, and their opinion of how after the Daubert decision, the judge became their client has responded to treatment. For exam- the “gatekeeper” of scientific information and is ple, a clinician could testify that their client solely responsible for the ultimate determinate of reported experiencing physical abuse in child- the admissibility of expert testimony (Woody, hood, that they reported symptoms consistent 2016). Therefore, psychologists must be able to with a PTSD diagnosis, and that they responded demonstrate not just their competence regarding well over the course of their trauma-focused ther- the nature of the assessment but also their knowl- apy. However, a treating expert should not testify edge of the relevant legal standard in their juris- to the causal nature of their client’s diagnosis diction to ensure their testimony and basis for  244 BAKER AND GOTTLIEB opinion is appropriate. Furthermore, it is important was no signed release attached from the named to remember the goal of testifying as a psychologist person, she was not able to state whether this per- is to communicate one’s findings and opinions son was even a client of hers. In this way, she clearly using language that can be understood by has responded to the subpoena, which is a legal a judge or jury (depending on the case) and not requirement, but she has not violated her client’s to “win” the case for an attorney. confidentiality. But what if Dr. Ho did not know to look for her Scope of This Article client’s release? If she did not, she would have been well advised to avoid acting hastily and Over the years, many of our forensic col- seek consultation from a competent lawyer, a This article is intended solely for the personal use of the individual user and is not to be disseminated broadly. leagues have become dismayed with the degree respected forensic psychologist, or one of her This document is copyrighted by the American Psychological Association or one of its allied publishers. to which some clinicians, unfamiliar with forensic insurance company’s risk managers. Regardless practice, find themselves in trouble and cause of who she consults, the first thing she should harm to others due to their good intentions but igno- do is not act hastily as doing so could lead to rance of the legal system and their role in it. This has far greater problems for both her and her patient. led to many forensic psychologists educating our clinical colleagues about the differences between Boundaries of Competence these roles, and this article is another effort in that regard. We understand that most clinicians Dr. Sanchez specialized in treating men. One day, he was called by a woman who identified herself as a lawyer for are terrified of becoming involved in legal mat- one of his clients. She explained to him that her client had ters especially since the environment, rules, and been accused of a sexual offense, and she wanted him our roles are so different. The purpose of this arti- to testify on her client’s behalf. Specifically, she asked cle is to identify common pitfalls for clinicians if he could opine regarding his client’s risk for reoff- ending. Believing that he knew the client very well, and to explain, at least in some cases, how one Dr. Sanchez firmly believed and testified that such an can either avoid or effectively manage them. allegation must be false even though neither the issue nor the allegations had ever been raised in treatment. Common Pitfalls Dr. Sanchez wanted to help his client in any way that he could, immediately agreed to testify, and did so. Confidentiality Dr. Ho is a clinical psychologist in private practice who Analysis deals primarily with anxiety disorders and depression. In between sessions, she heard a knock at her door and Dr. Sanchez was a clinician with a specific went to see who it was. Upon opening the door, specialty in men’s issues; he was not a forensic she saw a strange man standing there. He asked if she psychologist, and he had no training or experi- was Dr. Ho, she responded “yes,” and he put a piece of ence in performing risk assessments for future dan- paper in her hand saying that she has been “served.” Upon examining it, she realized that this was a subpoena gerousness. In fact, he did not even know that such for records of one of her clients. She immediately assessments required a very specific skill set. The became afraid of becoming involved in a legal matter result of his good intentions was that he was pro- of which she was unaware, copied her file, and sent it hibited from testifying at his client’s trial because to the requesting party. what he knew was not relevant to the psycholegal question; hence, his testimony not only failed to Analysis meet the Daubert requirements, but it exceeded the boundaries of his competence (APA, 2013, In this example, Dr. Ho’s anxiety impelled her 2017). to act impulsively and recklessly. Had she taken When the lawyer called Dr. Sanchez, he should the time to review the subpoena, she would have have immediately informed her that he knew noth- noticed that there was no release of information ing about the allegations, he was not a forensic from her client to provide records to the request- psychologist, and did not have the skills to per- ing party. Releasing the records without her cli- form such an assessment. Then, it would have ent’s permission was a violation of her client’s been appropriate for him to offer the lawyer refer- confidentiality (APA, 2017). rals to colleagues who did this work, explain its What she should have done was to contact the relevance, and the need for such an independent requesting party and inform them that since there evaluation.  NAVIGATING THE MAZE 245 Scientific Responsibility doing so would have been in her client’s best interest. Shortly after entering independent practice, Shalondra Given the lawyer’s statement, it would be rea- Davis, Ph.D. was consulted by woman who presented with moderately severe acute anxiety claiming that it sonable to assume that she had not retained a foren- was the result of sexual harassment by her boss. She sic expert, and this could have increased the reported that when she rejected his initial overtures, he pressure on Dr. Davis to “do what you can” because began to inappropriately touch her. She complained to “you’re all I’ve got.” But if she agreed to testify her human resources department, but she said that noth- regarding the legal questions, she would violate ing was done. She made oblique references to filing an Equal Employment Opportunity Commission complaint basic principles of scientific responsibility (APA, and filing a lawsuit, but Dr. Davis did not fully appreciate 2017, Section 2.04) since she did not have adequate This article is intended solely for the personal use of the individual user and is not to be disseminated broadly. the significance of these references, and she assumed she data to support an opinion regarding the cause of This document is copyrighted by the American Psychological Association or one of its allied publishers. would not be involved in the legal process. Yet, the client her client’s distress. However, she could testify as insisted that Dr. Davis record in her notes all the things a treating expert, emphasizing that her opinions that had happened in her workplace, including state- ments of others that would support her claim. were based on her clinical judgment and that she could not address the psycholegal issues. Finally, One day, Dr. Davis received a telephone call from her we should note that it was not Dr. Davis’s respon- client’s attorney, who informed her that she would be calling her to testify about how the client had been dam- sibility to rescue the lawyer from her poor judgment aged as a result of her mistreatment at work. Dr. Davis or inexperience. While such situations are uncom- resisted at first, knowing that the data she had were lim- fortable and very unfortunate, in our experience ited to what her client told her and that she could not they are all too common, but it is never a good directly address the legal question regarding the cause of idea to “help” a lawyer at our own expense or her client’s condition. But the lawyer persisted, informing Dr. Davis that her testimony was vital, and that without it, that of our client. their client would surely lose. (Adapted from Tjeltveit & Gottlieb, 2010) Validity of Test Data Analysis Ms. Jones sought personal therapy from Dr. Smith because she was in the middle of an extremely contentious Lawyers can be very persuasive people, and divorce from a man whom she described as abusive and extremely narcissistic. She presented with a good since she wanted Dr. Davis’s help, she did every- deal of mood instability apparently the result of an thing she could to persuade her to testify. Also, extremely high level of anxiety. Out of concern for her it was perfectly understandable that Dr. Davis welfare, Dr. Smith administered a battery of psycho- wanted to help her client in any way that she logical tests to aid in her diagnosis and treatment of could, and her desire only increased when she Ms. Jones. Ms. Jones’s responded to treatment well, and her mood began to stabilize as her anxiety dimin- felt the strong tug from the lawyer. Unfortunately, ished. At about this time, Ms. Jones’s lawyer called Dr. the legal questions had to do with what caused Smith asking her to testify regarding the fact that Ms. her client’s condition, and to what degree she Jones was a good mother. Dr. Smith felt that she had may have been damaged as a result. But more than adequate data to answer this question, and in an effort to help her client, quickly agreed. Dr. Davis only knew what her client told her, and she lacked the data to independently corrob- orate anything she had learned. Furthermore, if Analysis Dr. Davis had testified, she would not have been able to include the statements of others For the purpose of this example, let us as- since they would have been hearsay. sume that Dr. Smith’s initial assessment battery In this example, Dr. Davis would have been well was appropriate to Ms. Jones’s initial clinical advised to schedule a conference with a lawyer who presentation. If Dr. Smith testified regarding understood our rules, a forensic colleague, or one of Ms. Smith’s parenting ability, she would be vig- her insurance carrier risk managers. We suspect they orously cross-examined regarding the applicabil- would have told Dr. Davis to speak with the lawyer ity of her test data to that question as well as the and take as much time as needed to explain what fact that she had never observed Ms. Jones with she knew, what she did not know, and the limi- her children. tations of her potential testimony (APA, 2017, As with the examples above, this example raises Section 9.01). While Dr. Davis may well have questions regarding the necessity of Dr. Smith found the prospect of such a meeting unpleasant, remaining within her boundaries of competence  246 BAKER AND GOTTLIEB and adhering to scientific responsibility. Here, unacceptable dual role (S. A. Greenberg & however, the issue of the applicability of her test Shuman, 1997). data also became relevant since there is no psycho- Since most people in Ms. Uwase’s situation logical test that can address the question of parental cannot afford to hire an immigration lawyer, capacity. they often seek help from charitable organizations When Ms. Jones’s lawyer called her, Dr. Smith who use the help of volunteer lawyers, many should have explained in detail the nature of her of whom have no expertise in immigration law. role. Specifically, she should have told the lawyer As a result, persons such as Dr. Muhammed are that she was addressing Ms. Jones’s symptom often placed in the very uncomfortable position burden, the tests were designed to assess only of having to educate well-intentioned lawyers This article is intended solely for the personal use of the individual user and is not to be disseminated broadly. that one question, and that this was the limita- regarding our ethics code and its limitations in sit- This document is copyrighted by the American Psychological Association or one of its allied publishers. tion of her involvement. As we noted above, uations such as this. the lawyer may well have tried to persuade Dr. Smith to testify nonetheless, but it was her Bias responsibility to explain the limitations of such testimony and the reasons why she would be The desire to help our clients, act in their behalf, limited to them. and advocate for their interests is deeply ingrained in all of us, and in clinical situations, these values Collateral Sources are both necessary and beneficial, and these feel- ings may become even stronger when we learn Ms. Uwase had been the victim of the Rwandan genocide. that one of our clients find themselves in some She and her family fled to a church where she had been type of legal jeopardy. In the examples above, raped in front of her family and then forced to watch as we have illustrated some of the common ethical they were murdered. Through a great deal of luck, she was spared, fled the country, and was taken in by problems that can occur when clinicians are family members in the U.S. where she began treatment asked to become involved in legal matters and for severe and chronic PTSD by Dr. Mohammed. find themselves in situations where their desire One day Dr. Mohammed received a phone call from to help supersedes adhering to professional stan- Ms. Uwase’s lawyer, telling her that she would be called to testify at her client’s immigration hearing about dards (e.g., Tjeltveit & Gottlieb, 2010). the credibility of Ms. Uwase’s claim of political per- Thanks to the pioneering work of Kahneman secution, torture, and even death if she were to be (2011) and many of his colleagues and students, deported. Understanding the task, Dr. Mohammed readily we have learned how biases and heuristics agreed. create vulnerabilities that can adversely affect decision making (e.g., Gilovich et al., 2002). Analysis For example, practitioners are vulnerable to “thinking fast” in order to quickly relieve them- Dr. Mohammed was generally aware of the selves of the distress of the situation even though Rwandan genocide from the media, but had doing so may lead to even greater problems (for no direct knowledge of it other than what her further reading, see Rogerson et al., 2011). We client told her. Yet, she wanted to help her simply wish to remind the reader of the need to client, so she offered to seek independent corrob- be mindful of these risks, especially the failure oration of Ms. Uwase’s claims in order to offer to consider our blind spots to alternative ex- testimony the lawyer wanted. But doing so planations (for further reading, see Banaji & would have been highly inadvisable for two rea- Greenwald, 2013). sons. First, while her historical knowledge might As we noted above, adhering to our profes- have improved her understanding of her client’s sional standards and legal restrictions may not experience, it would not have added credibility lead to personally satisfying results, or good out- to her testimony as the context was not directly comes for our clients. Nevertheless, it is entirely related to Ms. Uwase’s experience; this would possible to provide good care, adhere to our prin- be of no direct benefit to her client. Second, if ciples and standards, and practice good risk man- she agreed to obtain collateral information agement (for further reading, see the false to directly support Ms. Uwase’s condition, she trichotomy in Younggren & Gottlieb, 2004). would have volunteered to play the role of forensic Below, we provide some general recommenda- investigator; this would have placed her in an tions for the reader’s consideration.  NAVIGATING THE MAZE 247 Recommendations1 behavior, that as an expert you are playing a role in a larger system. Hence, to minimize distraction We have reviewed some common dilemmas in and prejudice, one should play the role that is which clinicians may find themselves, but these expected of them by appropriate behavior and are only examples; there are many more. Since dress. Someone else’s trial is not the place for we cannot address all of them here, we offer our personal statements. some general recommendations that we believe will be helpful in most circumstances. More Conclusion specifically, our intention is to focus on main- taining the standard of care, making good ethical It is a lawyer’s job to advocate for their client. This article is intended solely for the personal use of the individual user and is not to be disseminated broadly. decisions, and remaining mindful of risk man- From their perspective, we bring value to their This document is copyrighted by the American Psychological Association or one of its allied publishers. agement in these different circumstances. cases if we can provide them with helpful evidence, First, do nothing. Acting thoughtlessly in order and that is why they call us. However, lawyers are not to please creates a very high risk for exacerbating experts on our rules, nor are they obligated to be. At ethical dilemmas that have arisen. Since these cir- the same time, it is our responsibility to understand cumstances are never emergent, there is no rush, the role we may play in the legal system if we choose and one should take as much time to think things to become involved in it, or what has been referred to through as is necessary. as “playing in their sandbox” (L. R. Greenberg et al., Second, never worry alone (Gottlieb et al., 2008). Therefore, it often becomes necessary for us 2002). Precisely because of biases and heuristics, to explain our ethical standards to others, and we all practitioners should remain mindful of their should never be shy about doing so. role and how we may be affected by them. Since we are vulnerable to losing sight of these 1 factors, it is vital to consult with a knowledgeable Portions of these recommendations were taken from colleague who we can trust to be honest with us. Gottlieb, M.C. (March 2022). Recent developments in ethical decision making: A research based practical guide. Grand Third, think through all the alternatives and Rounds Presentation via video conference. The Medical make a detailed list of the pros and cons includ- College of Georgia. ing the potential effects for the stakeholders. Fourth, if no clear course emerges, obtain pro- fessional consultation from a risk manager or a References lawyer familiar with the nature of our practice. Fifth, continue to do nothing when possible American Psychological Association (APA). (2013). and take as much time as necessary to determine Specialty guidelines for forensic psychology. Amer- the basis of the course you have chosen. In this ican Psychologist, 68(1), 7–19. https://doi.org/10 regard, pay special attention to how you may be.1037/a0029889 affected by heuristics and biases. American Psychological Association (APA). (2017). Sixth, if called to testify, a forensic psychologist Ethical principles of psychologists and code of con- duct (2002, amended effective June 1, 2010, and should advocate for their opinion and the data they January 1, 2017). https://www.apa.org/ethics/code/ collected; clinicians should advocate for their cli- Banaji, M. R., & Greenwald, A. G. (2013). Blind spots. ent while remaining within their boundaries of Delacorte. competence and adhering to the principle of scien- Brown v. Board of Education, 347 U.S. 483 (1954). tific responsibility (APA, 2017). https://www.oyez.org/cases/1940-1955/347us483 Seventh, it is very easy to become personally Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 involved in such matters. That is why it is crit- U.S. 579 (1993). https://www.oyez.org/cases/1992/ ical to remember that the legal proceeding is about 92-102