Ethical Concerns: Questioning Motives & Biases in Forensic Matters

Ethical Concerns

Questioning Motives and Biases in Forensic Matters

by, Jonathan Wall, PsyD

My forensic work demands that I continually challenge myself and question my motives. We all have blind spots, and my colleagues’ objective advice is a necessary part of avoiding ethical pitfalls. Colleagues can point out ethical concerns, biases, and other tripping hazards. For example, an attorney once asked me to prepare a parenting time evaluation. Despite my preference to serve as a joint expert for both parents, I sent off my retainer agreement. After interviewing and assessing both parents, I became increasingly convinced that the parent who did not retain me for my services should be the residential parent. I found myself in a predicament. I figured the zealous attorney deserved to know my stance before I exhausted his client’s funds to write the report. However, I still needed to gather more information for his client before sharing my inchoate recommendations. When should I pull the plug? Should I continue to speak to all the collateral contacts and engage in home observations by the slight chance that I might decide otherwise? Given the client’s humble circumstances, should I lower my fee, not charge for my time, close down the process? I consulted with a colleague who reminded me that the client’s financial straits are not my problem: my job was to write a thorough report not serve as an unqualified financial or legal strategist. The failure to do so could legitimately result in a board complaint. In this case, unsettling collateral information could sway my recommendation. I solved this dilemma by listing all of the remaining tasks with estimates of the costs. I shared this list with the client and attorney in order to give them the opportunity to make an informed decision about whether they wished for me to finalize the evaluation. This problem speaks to the complicated nature of forensic work and the need for consultation. Forensic evaluations often deal with murky matters, and providing a proper recommendation requires an extensive effort to interview and assess those we evaluate. Notwithstanding the ethical challenges of forensic work, most forensic psychologists I’ve met are ethical, “good enough” professionals. We err at times, but we seek consultation. The exceptional few who stand above all in their intellectual rigor, and decency, when asked, often humbly share their mistakes while mentoring others on how best to avoid them. Unfortunately, some evaluators cut corners even highly qualified individuals who should know better. For example, I recall discreetly telling a psychologist to rethink his habit of cutting and pasting snippets of canned Rorschach reports into his parental fitness evaluations. Then there was a senior psychologist I once advised to stop calling a section of his report a neuropsychological assessment for “organicity” because he misapplied the Bender Gestalt perceptual-motor skills test as an attention and projective test. And finally, I worked with a patient in therapy who once shared that their custody evaluator offered to complete the MMPI-2 for them: “He was so nice. He said I looked tired. He told me to leave, and he would finish it for me!” In this matter, if the patient’s report was accurate, I doubt discussing my concerns with the evaluator would change his behavior. Beyond blatant plagiarism, lack of competence, and (alleged) connivances noted above; all forensic evaluators are prone to unconscious bias. While we might surmise that another evaluator skewed their recommendations given their “adversarial allegiance” to the attorney’s position who referred them the case, we may not perceive ourselves as biased. Our unconscious blind spots can skew our perception. Daniel Murrie, PhD’s research on unconscious bias, reveals that even the best of us may “select and interpret data in a manner that favors the party that retains them.” An attorney may then choose me to prepare an evaluation because I have consistently argued for the same positions they wish me to support. Murrie finds that “savvy attorneys may have a good sense of how evaluators tend to lean and pick them accordingly. We call that selection effects.” (Daniel Murrie, 2020, p. 72) Whether deliberate or inadvertent, ethical missteps or, at least, the perception of questionable ethical lapses occur with some frequency in forensic psychology. What should you do when you come across an apparent ethical violation in another expert’s work? Bush, Connell, and Denney’s book Ethical Practice in Forensic Psychology: A Systematic Model for Decision Making provide a framework for addressing questionable and unethical conduct by a forensic evaluator. Bush et al. first ask us to identify the specific issue that runs afoul of the APA ethical guidelines. Then, they ask us to reach out

to our colleagues to address our concerns. If we are still unsatisfied and fear that substantial harm may arise from inaction, then we may have no choice but to contact the court and the state licensing board during the trial. Even then, Ethical Standard 1.05 Reporting Ethical Violations require us to be careful. Should the court find our concern not “egregious” enough, but, instead, determines that your complaint “specious,” we may have run afoul of APA ethics Standard 1.07, which involves making an “Improper Complaint.” From the board’s perspective, examples of an egregious or outrageous action may include being intimate with a patient, releasing confidential information without consent, filing false insurance claims, or extorting money from a client. In contrast, is it “outrageous” to carelessly misquote collaterals, misinterpret or inaccurately report an inventory result or make a recommendation that overly favors the retaining party? Contacting the board to report a vague impression as biased or unprofessional may do more harm than good. It’s essential to be as specific as possible when outlining your concern and confirming your position with colleagues or the court. What should you do, then, when you read a biased report replete with errors and unfounded recommendations in what appears to be a brazen attempt to deceive the court? The last thing you will want to do is make an improper complaint only to be accused of having tampered with a witness. As such, Bush et al. refer to the American Academy of Neuropsychology’s recommendation to contact the court only after the trial ends. Be mindful that if the court deems your complaint frivolous, you may receive a counter-complaint for slandering another professional. Making a diligent effort to get objective feedback beforehand may help clarify, you should contact the judge during a trial. To recap this structured approach, Bush, Connell, and Denny ask you to analyze and identify the problem; consider the relevant issue(s); review the laws and regulations that the evaluator may have transgressed, and anticipate how this revelation may impact the legal process. After reviewing your findings with colleagues, you may be able to discern whether you ought to raise your concern during the trial or with the State Board of Psychological Examiners. If in doubt, contacting your malpractice insurance for their advice, reaching out to an attorney specializing in representing psychologists, and

raising your concerns with the ethics and forensic committees in your association are all good options.

REFERENCES

APA. (2017, 01 01). Ethical Principles of Psychologists and Code of Conduct. Retrieved from APA.org: http://www.apa.org/ethics/code/#102 Bush, S., Connell, M., & Denney, R. (2006). Ethical Practice in Forensic Psychology: A Systematic Model for Decision Making. Washington, DC: APA.

Daniel Murrie, P. (2020). How Reliable and Objective are Forensic Mental Health Evaluations. The University of Virginia, Institute of Law, Psychiatry and Public Policy. The University of New Mexico Health Sciences.