Psychological Services for Litigation Support (PDF)

Psychological Services for Litigation Support Including Work Product Review/Critique Approved: 2019 Role of the College of Alberta Psychologists The role of the College of Alberta Psychologists (CAP) is to protect the public and maintain their confidence by ensuring that all psychologists engage in...

Psychological Services for Litigation Support Including Work Product Review/Critique Approved: 2019 Role of the College of Alberta Psychologists The role of the College of Alberta Psychologists (CAP) is to protect the public and maintain their confidence by ensuring that all psychologists engage in competent, skilled and ethical practice. To this end, CAP establishes, adopts and implements good character, academic (and related) requirements for entry to the profession, standards of practice, codes of ethics, and ethical decision-making principles. As a self-regulated profession, psychologists are ultimately responsible and accountable for all activities they engage in as a regulated member as well as those that link to and reflect upon the profession. As such, CAP provides general clinical and ethical guidance to members, this includes guiding members in identifying, interpreting, and applying regulatory resources (e.g., Legislation, Standards of Practice, Practice Guidelines/Alerts) to their practice situation. CAP does not provide legal, business, or practice specific direction. All psychologists are encouraged to seek additional expert subject matter consultations when faced with complex clinical, technical (practice or ethical), legal and/or business issues. Practice Guidelines support CAP’s primary public protection role by enhancing the practice of psychologists through the integration of standards of practice and ethical principles to specific subject areas. The CAP Standards of Practice outline the minimum expectations of the profession. The Canadian Psychological Association’s (CPA) Canadian Code of Ethics for Psychologists establishes the foundational ethical principles that underpin the profession of psychology. While often considered aspirational in nature, they may also reflect minimum professional expectations like practice standards and form the basis of discipline-related actions. Practice Guideline - Psychological Services for Litigation Support 2 Preamble and Definitions Psychologists may be asked to provide several types of psychological services for litigation purposes to a client, their legal counsel, or to the Court. This form of work is often referred to as “litigation support.” Psychologists are advised to be mindful in all service requests to clarify the nature of the issue(s) relative to their competencies, and whether they are able to undertake the request. A Court Order or a lawyer request does not remove the psychologists’ obligation to determine whether they can professionally and ethically undertake the request. Key values that serve as anchor points for this guideline are fair treatment, objectivity, neutrality and competency. While these values are not exhaustive in terms of the values that may apply to psychological services for litigation, they are foundational for this work. Psychological services for litigation can be broadly defined as: “The review of specific psychological factors/knowledge-base and/or another mental health professional’s work to determine its value and relevance to a particular (legal) matter at hand.” In the context of litigation psychologists may be asked to provide their services in several ways. This may include, but not be limited to: jury selection, witness deposition »» understanding psychological principles, theories and practices »» interpretation and understanding of psychological evaluations or correspondence conducting original research »» summarizing relevant psychological literature, critique of research studies »» management and compilation of data »» assistance with statistical analysis, evaluation of mass media and advertising issues »» analysis of cultural or diversity issues related to language usage, ethnic identity and values »» production of summary charts, exhibits and presentations of data. Preparation for examination and/or cross examination of witnesses (including experts). Providing general psychological knowledge support for hearings on matters of law or admissibility of evidence in a Court of law. This can be done via live testimony, in vivo guidance to legal counsel or with written documentation. Providing a critical review of another mental health professional’s work with full or partial access to that professional’s clinical data (i.e., work product review) in either written or verbal format. Assistance to legal counsel with: »» »» Unacceptable forms of psychological services for litigation may include, but not be limited to: Providing help to a client to prepare or “coach” them on how to perform on a psychological evaluation. This is especially the case when this might involve providing Practice Guideline - Psychological Services for Litigation Support 3 specific knowledge about how to perform for specific tests, and providing information on test content or so-called “trade secret” or copyrighted test information to a nonpsychologist (see Practice Guideline: Control and Use of Tests by Psychologists). Providing psychological services for litigation that is intentionally selective to support one side of an argument and that does not acknowledge limits to opinions, or that presents data in a biased way in order to “win” a case without due consideration for potential risks and benefits. The role of psychologists in services for litigation is to ensure clarity on the best available psychological evidence. The role of psychologists is not to ensure that one or more parties “wins” a case. Psychologists strive to maintain objectivity and be true to the science of the profession. Psychological services for litigation that are outside of the bounds of our CAP Standards of Practice or the CPA Canadian Code of Ethics. For example: »» providing alternative definitive clinical recommendations or diagnoses based solely on the documentation that is offered as being equivalent to direct and substantial contact with the individual(s) in question »» engaging in dual roles combining litigation support with therapy or assessment with any of the involved parties »» making immaterial/unsubstantiated disparaging comments about another professional, individual or group »» engaging in confrontational, adversarial or demeaning debate with any participant that may call into question the psychologist’s objectivity or professionalism. Primary Issues to be addressed within this guideline: (1) 1 Training and competency to do litigation support (2) 2 Neutrality, impartiality and objectivity (3) 3 Multiple roles and conflicts of interest, and how to avoid them (4) 4 Confidentiality and access to information (5) 5 Maintaining test security (1) 6 Record-keeping (2) 7 Maintaining fairness/objectivity and avoiding bias (3) 8 Professionalism (4) 9 Specific guidelines for work product reviews/critiques Note: Primary issues 1 through 8 are broad guidelines for all litigation support while issue 9 is specific to work product review/critique, which is a unique subset of litigation support. Practice Guideline - Psychological Services for Litigation Support 4 Key Ethical Principles, Standards of Practice and Legislation General Principles The four ethical principles that constitute the Canadian Code of Ethics for Psychologists contain values statements that encapsulate professionalism in the practice of psychology. These are: 1.1 (1) I Respect for the Dignity of Persons and Peoples (1) III Integrity in Relationships (2) II Responsible Caring (2) IV Responsibility to Society The psychologist providing a service for litigation purposes should have sufficient professional knowledge and competence to do so. Psychologists should continually strive to develop and augment their skills and abilities, consistent with a career-long dedication to professional development. It is recognized that competence can be acquired through various combinations of education, training, supervised experience, consultation, study and professional experience. Psychologists who are asked to provide services for litigation purposes should have sufficient professional knowledge in the area(s) in which they are asked to offer their expertise. In addition, since psychological services for litigation often cross boundaries between clinical and forensic applications, it is incumbent upon psychologists to have familiarity with the appropriate legislation, procedures, rules of court and familiarity with relevant case law pertinent to the litigation case. This might include knowledge of such concepts as hearsay or rules of evidence. Psychologists should have knowledge in their clinical area of expertise and in the application of that knowledge in a litigation or forensic context. It is recommended that psychologists conducting psychological services for litigation know the typical legal requirements to qualify as an expert in the area(s) for which their service is required. Qualification as an expert enhances the likelihood that the psychologist will be allowed to provide opinion evidence if required. Psychologists should accurately represent the nature and extent of their knowledge, training and experience to those who are recipients of their services. Psychologists should also accurately represent their involvement and the basis of their opinion and limitations inherent in the methodology and data reviewed. Psychologists who provide expert testimony in Court should have reasonable scientific knowledge and/or professional experience of the area(s) to accurately represent that knowledge under examination in chief and cross examination. Practice Guideline - Psychological Services for Litigation Support 5 Psychologists who provide expert testimony in Court should not provide opinions outside of their area(s) of expertise, including responding to hypothetical questions not within their professional knowledge domain. 1.2 Psychologists should be neutral, impartial, fair and objective when providing litigation support. Psychologists shall conduct themselves with professional decorum, transparency and impartiality in all aspects of litigation support services. Psychologists demonstrate objectivity and neutrality by not taking sides focusing on the methodology, analysis/interpretation and recommendations, the professional ethics and standards that apply and the currently accepted practices (at the time the work was done). Psychologists must represent the integrity of the profession in all activities/communications, ensuring the integrity of the profession is always maintained. 1.3 Psychologists providing psychological services for litigation should avoid taking on more than one role. Psychologists should carefully define their role at the outset and avoid taking on more than one litigation support role at a time. Psychologists should avoid providing litigation support if they have already provided or are providing another psychological support role to a party to the litigation. Psychologists providing psychological services for litigation are to maintain the position of an objective and neutral third party. Their role is to clarify and interpret psychological knowledge that may not be readily available to those involved. Psychologists always provide a balanced view identifying where the evidence supports or does not support a particular view. Services involve a non-emotional, clinical analysis of a work product or work process. At times, psychologists may be asked to do a work product review/critique of another psychologist’s work as well as providing in vivo support to legal counsel for examination or cross examination of that psychologist. While playing these roles together may be permissible, it is advisable for psychologists to have their conduct guided by the principles of objectivity, fairness and neutrality (see 1.2). 1.4 Psychologists are sensitive to issues of confidentiality and consent. Psychologists understand that, in many instances, litigation services are provided within the context of a Court process where one or more parties may not be voluntarily participating in the legal/ judicial process. When the client is considered to be the lawyer, the Court, or another third party, psychologists consider whether consent from one or more parties is required for their services. 1.5 Psychologists should be careful to maintain test security in their review of psychological test data. Psychologists can make comments on test information when providing services for litigation, but should be careful to not reveal specific test item content that may jeopardize test security or copyright. 1.6 Psychologists who offer services for litigation should keep a record of their work in accordance with Standards of Practice. Psychologists should keep a record of any involvement in litigation support. At times psychologists may be given only temporary access to information and asked to formulate a written document or provide verbal input in the name of litigation support. Psychologists need not keep a copy of materials that are provided to them on a temporary basis for their review in the name of litigation support. However, they should still retain a record of the steps they have taken and a list of any documentation or relevant correspondence. 1.7 A psychologist providing litigation support services should be that of a neutral third party who provides fair, balanced and objective services. In litigation support, psychologists may be asked by one party or side in a litigation to provide support. However, the role of psychologists is to not act in a way that may create a perception of bias. Rather, the role of psychologists is to act as a neutral third party to honestly and objectively examine the work, identify strengths and weaknesses and/or address the client’s questions or concerns. Psychologists may need to distinguish between trivial and/or significant errors or omissions that may call the final results and recommendations into question. 1.8 Psychologists providing psychological services for litigation should provide their services with professionalism. Litigation support should be provided with professional decorum. Professionalism involves Practice Guideline - Psychological Services for Litigation Support 6 behaviours that import the values and ethics of psychology. Litigation support should be done in a manner that is timely, honest, grounded in evidence-based practice and experience, respects confidentiality, seeks to maximize benefits and minimize harm to persons or peoples and avoids personal attacks or degrading verbal/written comments about another psychologist’s work. Litigation support should not be viewed as trying to help a side win a case so much as providing necessary objective and scientific information from one’s psychological area(s) of expertise surrounding the issues and data involved in the case. As such, professional opinions about the work of another psychologist or health professional should be balanced, and should include both the potential weaknesses of the work product and its strengths, where they may be found. While legal counsel may use this information to help them further a position in a case, the psychologists’ professional role must be to objectively represent the scientific literature and best practices in the field. 1.9 Work Product Review/Critique Guidelines Critique versus Review: These terms are being used synonymously for the purposes of these guidelines. However, it is important to establish what is meant by the term “critique.” In this guideline, a critique refers to a systematic and disciplined review of another professional’s work that involves exercising judgment on both the merits and the shortcomings of the work. Thus, critique is not meant to solely reflect fault finding or a negative analysis of another person’s work. hypothesis. Caution needs to be taken that identifying missed alternative hypotheses is not portrayed as offering clinical recommendations on the ultimate issue. Alternative hypotheses should be offered considering available scientific information, and not just information that fits a specific argument. A reviewer should never use deceit or deliberately withhold information or ignore reasonable cogent alternative arguments. Ground any alternative hypotheses offered to the available data, and specify which data was used and whether the data was different than that used in the work under review. A review of another professional’s work can include an analysis of the psychometrics and methods, and the relative strengths of each, as well as merits that might strengthen or limit rival hypotheses. (4) Reviews should be objective, fair and free of personal or professional biases. (5) In offering a review or critique of a fellow professional’s work, reviewers should be honest and respectful in tone. (6) Psychologists should clearly define their role and purpose in conducting a work product review. (7) Reviewers should avoid offering a second opinion or providing recommendations on ultimate issues before the Court, especially on issues that could impact a person’s rights, including parental rights. This is because a work product review does not constitute direct and substantial contact with the subject(s) of the review, may lack informed consent from those subjects, and does not include independent formal or general evaluation. (8) A work product review may include a critical analysis of the skills, training or knowledge of a professional. Such analysis should be based on objective information and should avoid personal attacks. (9) A work product review and any subsequent oral opinion should be balanced, and should identify strengths as well as potential weaknesses. The following are recommended guidelines for work product reviews/critiques: (1) Reviews/critiques should be limited to the scientific basis for being concerned with another professional’s work. This includes an analysis of application of known standards (if any), known guidelines (if any) and the parameters, methods, procedures, principles and research used by the professional whose work is under review. (2) Reviews should be clear, cogent and grounded in current knowledge of the relevant psychological scientific literature. (3) Reviews should include a discussion and analysis of any alternative or rival hypotheses, and should include acknowledgement and analysis of the relative strengths or limits of any (10) Reviews should provide a statement on factors that may limit the utility of their review/opinion, including that the review did not include any direct or substantial contact with the subject of the review. Practice Guideline - Psychological Services for Litigation Support 7