Standards on public statements and record-keeping
Respond to the following in a minimum of 175 words:
Review this week’s course materials and learning activities, and reflect on your learning so far this week. Respond to one or more of the following prompts in one to two paragraphs:
- Provide citation and reference to the material(s) you discuss. Describe what you found interesting regarding this topic, and why.
- Describe how you will apply that learning in your daily life, including your work life.
- Describe what may be unclear to you, and what you would like to learn.
University of Phoenix Material
Case Study Two Worksheet
Respond to the following questions in 1,250 to 1,500 words.
1. Why is this an ethical dilemma? Which APA Ethical Principles help frame the nature of the dilemma?
2. How might Irina’s age and parents’ involvement in the referral affect how Dr. Matthews can resolve the dilemma? How might the state law on treatment of minors and HIPAA rule on access of guardians to a minor’s health care record influence Dr. Matthews’ decision?
3. How are APA Ethical Standards 2.01a b, and c; 2.04; 3.04; 3.06; 4.01; 4.02; and 10.10a relevant to this case? Which other standards might apply?
4. What are Dr. Matthews’ ethical alternatives for resolving this dilemma? Which alternative best reflects the Ethics Code aspirational principle and enforceable standard, as well as legal standards and Dr. Matthews’ obligations to stakeholders?
5. What steps should Dr. Matthews take to ethically implement her decision and monitor its effects?
PART3-Write a 300-word or more paper in which you examine the legal aspects of record keeping and providing expert testimony. As part of your examination, address the following items:
Evaluate the legal issues associated with assessment, testing, and diagnosis documentation in professional psychology Fisher, C. B. (2013). Decoding the ethics code: A practical guide for psychologists. Thousand Oaks, CA: Sage.
REFERENCE FOR PART 1
Psychologists aspire to promote accuracy, honesty, and truthfulness in the science, teaching, and practice of psychology and do not engage in subterfuge or intentional misrepresentation of fact (Principle C: Integrity). Standard 5.01a of the APA Ethics Code (APA, 2010b) prohibits false, deceptive, or fraudulent public statements regarding work activities or the activities of persons or organizations with which psychologists are affiliated.
The terms avoidance and knowingly exclude as violations statements that psychologists would reasonably be expected to believe are true but that they may later learn are false.
- ☑ A psychologist in a group practice distributed brochures with a listing of the group members’ credentials, only to discover that one member had submitted false credentials. She ceased distribution and ordered a corrected brochure.
- ☑ A research psychologist gave a public lecture, a series of media interviews, and congressional testimony during which he publicly concluded that current empirical evidence supported a particular policy initiative. Six months later, the release of results from a large federally funded study challenged those conclusions. Based on this new information, the psychologist decided to modify her recommendations in future reports.
- ☑ A clinical psychologist, whose professional website included links to online listings of national and local mental health informational services, vetted the accuracy of the information on each listed website before the initial listing and periodically thereafter.
- ☑ A forensic psychologist providing expert testimony on the risks of social media addiction clearly stated the limitations of scientific and clinical knowledge in this emerging field (see also Standard 2.04, Bases for Scientific and Professional Judgments).
Definition of Public Statements
This standard begins with a definition of public statements. This definition applies to the use of the term public statement or statement in all standards under Section 5, Advertising and Other Public Statements. The definition refers only to statements made in the public domain. It does not apply to statements made during private professional or personal conversations with clients/patients, organizational clients, attorneys, students, colleagues, or others with whom psychologists have a professional or personal relationship.
The following are the types of statements included in this definition along with examples of false or deceptive statements that would be in violation of this standard:
- ☒ Paid or unpaid product endorsements. A toy company paid a school psychologist for her endorsement stating the proven effectiveness of a tape-recorded language lesson for infants that would improve reading comprehension in elementary school. There was no empirical evidence supporting this claim.
- ☒ Self-marketing. A neuropsychologist conducted a series of laboratory studies in which participants were asked to undertake a minor theft in the lab and then deny stealing while their brain patterns were analyzed using functional magnetic resonance imaging (fMRI). She bought advertising space in a monthly professional magazine, offering her paid services to police investigators who wished to use a “scientifically proven method” to detect deception in criminal interrogations (see Farah, Hutchinson, Phelps, & Wagner, 2014; Presidential Commission for the Study of Bioethical Issues, 2014).
- ☒ Licensing, grant applications, and other credentialing applications. In the “Preliminary Studies” section of a federal grant application, an experimental psychologist listed as completed a pilot study that was still in the data collection phase.
- ☒ Directory listings, personal résumés, or curricula vitae. A psychologist with a PhD in social psychology and no specialized clinical or other practice-oriented postdoctoral training listed himself in the city directory under health care providers.
- ☒ Business cards. A clinical neuropsychologist set up a practice in which she prescribed psychotropic medications through her license as a nurse practitioner. Her business cards only included her degree and title as a neuropsychologist but listed both her psychology and nursing state licensure numbers.
- ☒ Comments for use in print, electronic, or other media. In a television interview, a psychology professor who had filed an academic freedom suit against his university claimed that the university refused to allow any faculty to teach courses that included discussion of human sexuality when, in fact, the university catalog listed several such courses.
- ☒ Statements in legal proceedings, lectures, public oral presentations, and published materials. An industrial–organizational psychologist was hired as an expert witness by an attorney for a large retailing firm accused of discriminatory hiring practices. She testified that data on the firm’s hiring of women and ethnic minority applicants were not significantly different from national data on employment practices in similar companies, despite the fact that she had not examined any of the firm’s actual employment data. (See the Hot Topic at the end of this chapter, “Avoiding False and Deceptive Statements in Scientific and Clinical Expert Testimony.”)
- ☒ Commenting on the work of other experts at trial. A forensic psychologist testified that an expert hired by the opposing attorney did not correctly score the defendant’s responses on the Lie scale of the MMPI-2-RF, even though the psychologist had not reviewed the expert’s assessment report (see APA 2013e; Otto, DeMier, & Boccaccini, 2014).
In contrast to Standard 5.01a, 5.01b does not include the term knowingly because it is assumed that psychologists would have sufficient information about the facts listed to avoid false, deceptive, or fraudulent statements.
The following are examples of violations of the eight types of statements listed under Standard 5.01b.
Comparative statements regarding the desirability of one type of service over another are not prohibited if there is substantial evidence to support the claim (Shead & Dobson, 2004; Standard 2.04, Bases for Scientific and Professional Judgments).
- ☒ Training, experience, or competence. On a professional liability insurance application, a psychologist stated that she had obtained substance abuse certification from the APA College of Professional Psychology when in fact she had only attended a workshop on substance abuse treatment at an APA meeting.
- ☒ Degree. A health psychologist applying to the American Board of Professional Psychology (ABPP) for diplomat status in behavioral psychology falsely claimed he had received his doctorate in clinical psychology.
- ☒ Credentials. On her business cards, a clinical psychologist with formal postdoctoral training in neuropsychology listed herself as a “licensed clinical neuropsychologist” when her state only issued licenses in psychology (see Meharg & Bush, 2010).
- ☒ Institutional or association affiliations. A psychologist in independent practice who rented office space from a university created a stationery letterhead that suggested he was affiliated with the institution.
- ☒ Services. A psychology group practice website listed family therapy as one of the services offered, even though the only psychologist offering this service had left the group more than a year ago.
- ☒ Scientific or clinical basis for, or results or degree of success of, their services. A behavioral psychologist running a weight loss program for obese adolescents stated in the program brochure that “99% of clients maintain their weight loss after they leave the program.” The statement did not include the fact that for most of these clients, the maintenance of weight loss lasted for less than 3 weeks.
- ☒ Brochures and printed matter. A consulting psychologist distributed brochures to personnel departments of banks in major cities stating that he had developed a foolproof psychological technique for preemployment integrity screening to weed out applicants who were prone to dishonesty. The claim was based on undocumented consultations conducted by the psychologist over several years.
- ☒ Fees. A child clinical psychologist presented a talk on childhood disorders at a parents’ association meeting. After the talk, she handed out printed information about her practice that stated that she offered all clients a sliding scale of fees beginning at $40 a session. The handout did not mention that the $40 rate was only for clients specifically referred by the HMO with which the psychologist had a contract.
- ☒ Publications or research findings. A school psychologist on the faculty of a large university received a grant from an educational services company. The purpose of the funded project was to compare student academic achievement in city-administered public schools with those run by the educational services company. Data from schools in the eight cities studied indicated significant differences in favor of the city-run schools in two cities, significant differences in favor of the company-run schools in two cities, and no significant differences in the other four school districts. The psychologist published only data from the two cities in which a positive effect of company-contracted schools was found and suggested in the conclusion of the article that these results could be generalized to other cities (see also Standard 3.06, Conflict of Interest).
Deceptive Web-Based Services
Potentially deceptive web-based advertisements and claims regarding Internet-based mental health services risk violating Standard 5.01b. Some have argued that direct-to-consumer advertising for health care services should be more restricted than for other services (e.g., car repair) because most potential clients/patients are not in a good position to evaluate their mental health, to assess the quality of care they receive, or to evaluate the legitimacy of claims made in the advertisement (Schenker, Arnold, & London, 2014). Substantial gaps in ethical compliance on websites advertising mental health services can include (a) failure to inform consumers that the psychologist’s license to provide mental health services online might be restricted by state law; (b) unsupported statements disparaging face-to-face therapies in comparison to online services; (c) descriptions of psychoeducational web-based services that could lead consumers to believe that they would receive individualized counseling, assessment, or therapeutic services; and (d) failure to clarify the boundaries of the psychologist’s competence to provide services across a broad spectrum of psychological disorders (Heinlen et al., 2003).
- ☒ A psychologist developed a web-based service for parents of children with behavioral problems at “www.parent-therapy-online.com.” Parents could pay $25 to email a specific question about how to help their child that would be answered within 24 hours by one of eight psychologists identified on the website as “child experts who will provide therapeutic advice personalized to each request.” In actuality, the “personal” email responses provided prewritten general statements about behavioral child management techniques. In small print at the bottom of the web page appeared the following statement: “The information provided on this website is for educational purposes and does not constitute treatment.”
Website advertising can place psychologists in violation of other Ethics Code standards (Koocher & Keith-Spiegel, 2008; Nagy, 2011; Nicholson, 2011). Below are examples of such violations:
- ☒ A neuropsychologist posted quasi-psychological screening tools with questionable validity and items drawn from standardized tests to “help” potential clients evaluate whether they needed his services (Standards 9.02a and b, Use of Assessments; 9.11, Maintaining Test Security).
- ☒ A school psychologist’s professional website included information sheets on different disorders and treatments related to learning disabilities without appropriate citation (Standard 8.11, Plagiarism). The violation was exacerbated when her website was listed by search engines as providing expert information for consumers on childhood learning disorders.
- ☒ A psychologist was hired by one of the fathers of an 8-year-old boy to conduct a custody assessment. Before she had an opportunity to complete her report, the boy’s other father threatened to write a negative review on the psychologist’s professional website. The psychologist assured the father who had made the threat that her report would be neutral in its recommendation (2.06, Conflict of Interest).
Psychologists may wonder when it is ethically acceptable to include personal information about themselves on a professional website. For example, should a psychologist offering art therapy services include information about public recognition she may have received as an artist? Knapp, VandeCreek, Handelsman, and Gottlieb (2013) recommended that self-disclosure in web-based advertisements should focus on the needs of the client and avoid exploitation. According to the authors, it is ethically appropriate to include a psychologist’s secondary occupation or personal experience when it is directly relevant to his or her ability to provide professional services (as in the art therapy example above) and inappropriate if it constitutes soliciting “customers” for a side business (as in the example below).
Standard 5.01c applies only to psychologists who are claiming degrees or credentials as evidence of their competence to provide health services. Unlike Standard 5.01b, this standard is not directed at whether a psychologist actually obtained the degree but whether the degree can be claimed as a basis for offering therapy or diagnostic or other types of health services.
Psychologists may refer to only two types of degrees as evidence of education and training in the field of psychology that qualify them as a health service provider. The first type is a degree in psychology (e.g., PhD, EdD, or PsyD) earned from a regionally accredited educational institution (e.g., the Commission on Higher Education of the Middle States Association of Colleges and Schools). The second type of degree is from a program in a nonaccredited institution whose curriculum and training experiences have been approved by the state in which the psychologist practices as qualifying him or her for eligibility for licensure in psychology.
- ☒ A psychologist developed a professional website to advertise his music therapy practice for children. The website also included a link to a site where the psychologist advertised his services as a piano teacher (3.05, Multiple Relationship).
A psychologist who claims a degree as a credential for health services that does not meet the above criteria would be in violation of this standard:
- ☒ An individual licensed as a social worker in his state acquired a PhD in counseling psychology from a nonaccredited university. He was unable to obtain licensure in psychology because the state in which he practices did not recognize his doctoral training as a basis for licensure in psychology. His business cards and professional letterhead included a PhD after his name, the title “Counseling Psychologist,” and his social work licensure ID number. The letterhead did not indicate that his license was in social work and not psychology.
- ☒ On her curriculum vitae, a psychologist claimed that she had received her PhD from an accredited university when her degree was from an unaccredited school to which she had transferred after attending the accredited university.
5.02 Statements by Others
Psychologists retain professional responsibility for false, deceptive, or fraudulent public statements by others whom they have engaged to promote their work or products. Failure to prevent or to correct such misstatements is a violation of Standard 5.02.
Standard 5.02b underscores psychologists’ obligations to avoid actions that might encourage others to make false or fraudulent statements about their work. This standard prohibits psychologists from paying or otherwise compensating members of the media in return for news coverage of their work. The use of the term compensate rather than pay means that psychologists who give nonmonetary gifts or pay for expensive dinners for journalists or others in the media in return for publicity in a news item may be considered in violation of this standard.
Standard 5.02c permits psychologists to run paid advertisements describing their services, publications, products, or other aspects of their work, as long as it is stated or otherwise clear to consumers that they are paid advertisements. The standard applies to advertisements on the Internet, in print, or in other media. “Canned columns” are an example of a paid advertisement that often is presented in a way that can be deceptive to consumers. Canned columns written and paid for by psychologists are typically presented in news or advice column format intended to mislead readers into believing that the psychologist has been invited or hired by the magazine or other media outlet to write the column because of his or her expertise. The “column” usually includes a description of the psychologist’s services, the psychologist’s picture, and contact information. Canned columns that do not include a clear statement that the column is a “paid advertisement” are in violation of this standard. In some instances, psychologists do not write the column themselves but purchase it from a writer who sells columns to psychologists nationwide. In such instances, the column must state that the psychologist is providing but has not written the column (see also Standard 5.01a, Avoidance of False or Deceptive Statements).
- ☑ A psychologist viewed the website of the company that was publishing a book she had just completed. She was surprised and pleased to see the company had started advertising the book as “forthcoming.” She then noticed that she was wrongly listed on the website as professor of psychology at a university where she had taught as an adjunct several years ago. She called her editor at the company to notify him of the error and to ask him to take steps to correct the website. She followed up with a letter to him reiterating this request and copied the chair of the psychology department at the university mentioned.
- ☒ A psychologist developed a program that enabled other psychologists to score a popular psychological test on their computers. The psychologist had not yet completed complementary software that would provide narrative interpretations of the scores. The marketing staff at the distribution company he contracted with to sell his product advised him that the scoring software would sell better if it was advertised as providing both scoring and interpretation. They argued that even though this was not currently true, because he was already working on the new program, eventually those who bought the original software would be able to use the complementary software for narrative interpretations. The psychologist agreed to the misleading advertisement.
5.03 Descriptions of Workshops and Non-Degree-Granting Educational Programs
Standard 5.03 applies to workshops, seminars, and non-degree-granting educational programs that are not part of the established degree-granting education and training programs covered under Standard 7.02, Descriptions of Education and Training Programs. Psychologists who offer non-degree-granting programs are responsible for ensuring the accuracy of announcements, catalogs, brochures, or advertisements appearing in print, the Internet, or other media. Announcements must clearly specify the intended audience, educational objectives, presenters, and fees. The phrase to the degree to which they exercise control is included in the standard in acknowledgment that despite a psychologist’s best efforts to control and monitor the process, errors or misrepresentations by others may occur during the production and distribution of materials. Psychologists should take reasonable steps to correct these errors.
The pharmaceutical industry has become a primary sponsor of continuing medical education because sponsors have found that it is a tool for influencing audiences to use their products (Pachter et al., 2007). Psychologists conducting industry-sponsored continuing education programs must ensure that the teaching materials are not biased toward the marketing interests of the sponsor (see also Standard 3.06, Conflict of Interest).
- ☒ Registration for a 1-day workshop on projective assessment techniques given by a well-known psychologist was advertised in several psychology journals and newsletters. Individuals paid in advance to reserve a seat in the course. Registration money could be partially refunded up to 2 days prior to the workshop. Several registrants who arrived to take the workshop were surprised to learn that although they were permitted to attend, they would not be given a certificate of completion because they were not licensed psychologists. The registrants complained that the advertisement had not mentioned that a license was required to receive the certificate and asked for their money back. Stating the cancellation policy, the psychologist refused to return the fees.
- ☒ A psychologist offered a seminar on child abuse identification and reporting that was advertised as fulfilling the state licensing board requirement for child abuse reporting training. Attendees who later submitted their seminar completion certificate to the state board were told that the curriculum did not satisfy the state’s educational requirement.
- ☒ A group of psychologists offered an 8-week certificate program on drug addiction counseling. Advertisements for the seminar listed the fee as $1,000. During the last week of the program, attendees were told that those who wished to obtain an official certificate documenting their participation must pay an additional $100.
5.04 Media Presentations
Standard 5.04 applies to psychologists who issue public advice or comment via print, Internet, television, radio, or other media. Such activities can include an occasional news media interview, a regular column in a print or Internet publication, a recurring spot on television or radio talk shows, or advice giving on one’s own professional blog. The standard does not apply to comments made to individuals with whom psychologists have an established professional relationship, such as an Internet communication or videoconferencing with a client/patient, student, colleague, or organizational client.
Competence and Bases for Judgments
Research and professional psychologists working through the media make important contributions to the accuracy of reporting and societal awareness of scientific and professional knowledge relevant to issues of public concern. This can include explaining (a) current research findings on human cognition, behavior genetics, emotion, personality, and behavior; (b) contributions of forensic psychology to legal decisions broadly or with respect to cases capturing media attention; (c) factors underlying organizational, military, political, religious, and other group attitudes and behaviors; or (d) the nature of and effective approaches to widely experienced psychological challenges (e.g., parent–adolescent conflict, stressors associated with caring for disabled children or elderly parents); and (e) the nature and treatment of psychological problems or mental health disorders (e.g., learning disabilities, schizophrenia, bipolar disorder).
Standard 5.04 prohibits psychologists from giving public advice or comment on the radio, in print media, on television, on the Internet, or via other forms of communication on topics and issues that are outside the boundaries of their competence based on their education, training, supervised experience, or other accepted means of acquiring professional or scientific expertise (see Standard 2.01a, Boundaries of Competence). The standard also prohibits psychologists from giving public comment or advice that significantly deviates from or is otherwise inconsistent with established psychological literature and practice (see Standard 2.04, Bases for Scientific and Professional Judgments). This standard thus reflects the importance of establishing public trust in the discipline through adherence to professional standards of conduct (Principle B: Fidelity and Responsibility).
- ☒ A comparative psychologist who had spent her career specializing in language in primates appeared on several talk shows providing public advice on how parents could identify and correct child language disorders.
- ☒ In a television interview, a counseling psychologist advised college students to follow his 10-step cure for test anxiety. The steps included drinking green tea, taking vitamin supplements, studying in groups, and other recommendations not in accord with recent research or established counseling techniques for test anxiety.
Otherwise Consistent With the Ethics Code
Public comment or advice through the media or the Internet must be in compliance with all relevant standards of the Ethics Code.
- ☒ After speaking with a listener for 3 minutes on a live radio talk show, a psychologist stated over the air that the listener showed definite signs of obsessive–compulsive disorder. Before going to a commercial break, the psychologist asked the listener to stay on the line “for a referral to a health care professional who can help you with this serious disorder” (violation of Standard 9.01a and b, Bases for Assessments).
- ☒ A developmental psychologist created a blog on which he provided critiques and recommendations for age-appropriate children’s products. The blog did not include a statement informing readers that the psychologist was on the board of directors of a company whose toys he regularly reviewed favorably (violation of Standard 3.06, Conflict of Interest).
- ☒ In response to a reporter’s request for background on a highly publicized murder, a psychologist described details of items on psychological tests typically administered in these cases (violation of Standard 9.11, Maintaining Test Security).
- ☒ In a televised interview, a forensic psychologist who had not been involved in a child abuse case nonetheless gave an opinion about the psychological characteristics of the parents involved (Standard 9.01b, Bases for Assessments).
Do Not Indicate a Professional Relationship Has Been Established
Psychologists providing public advice in response to questions over the radio, on television, on the Internet, or in published advice columns should clarify the educative versus therapeutic nature of their answers, avoid language that implies personal knowledge about the person asking the question, and take steps to avoid repeat communications with the person that may encourage the mistaken impression that a professional relationship has been established.
- ☑ A group of psychologists established a psychology advice email service. The group’s website included each participating psychologist’s credentials and picture. The website described the service as one that provided advice for people suffering from “social anxiety.” Individuals were charged by credit card for an answer to each email question they submitted. The site specifically stated that the service was not therapy. However, the psychologists’ answers were written in a very individualized and personalized manner rather than in broad educative statements, and individuals were encouraged to identify the psychologist whom they would like to answer their question. There was no limit to the number of questions that could be submitted, and some clients submitted daily questions to the same psychologist over several weeks or even months. (See Shapiro & Schulman, 1996, for an excellent discussion of such a case and related issues.)
Need to Know: Working With the Media
Below are some general points to consider when working with the media (for these and other excellent recommendations, see Friedland & Kaslow, 2013; McGarrah, Alvord, Martin, & Haldeman, 2009):
- When asked to comment on psychological factors influencing the behavior of a person in the news, make general comments only and explicitly state that you have not personally evaluated this person.
- Be wary of potential client/patient exploitation and harm as well as unanticipated violations of confidentiality when reporters ask you to recommend clients who might be part of the interview or when clients grant a reporter the right to speak with you about their case.
- When illustrating a point with a case example on blogs, talk shows, or interviews, avoid risks to client/patient confidentiality and potential harm by presenting explicitly labeled hypothetical cases.
- Before an interview or broadcast, know its length and the nature of the medium (e.g., live or pretaped), carefully plan what you will say to limit the possibility of distortion, and be aware that whether or not they provide you with an opportunity to fact-check their report in advance, members of the media have final control over the information disseminated (Standard 1.01, Misuse of Psychologists’ Work).
Psychologists are prohibited from asking individuals who are vulnerable to undue influence to provide commercial statements testifying to the benefits of the psychologist’s services. Standard 5.05 specifically prohibits solicitation of testimonials from clients/patients currently in therapy with the psychologist. Clients/patients are particularly vulnerable to exploitation by a psychologist who seeks their public testimonials because of power inequities between the therapist and client/patient, the psychological problems that brought clients/patients to therapy, the sharing of personal thoughts and feelings in therapy, and dependence on the psychologist for treatment.
Parents of children with learning disabilities, who depend on a school psychologist’s yearly evaluation to qualify for special education services for their children, might, because of their particular circumstances, be considered vulnerable to undue influence to offer testimonials for the psychologist. Family members in therapy with a psychologist for court-ordered treatment might also be considered vulnerable to threat or exploitation if approached to give a testimonial.
The standard does not prohibit unsolicited testimonials or the solicitation of testimonials from former clients/patients who are not vulnerable. However, psychologists should be cautious about approaching former therapy clients/patients who may be vulnerable to undue influence based on their mental status, the duration and intensity of the therapy, the circumstances of termination, the amount of time that has passed since termination, or comments that the psychologist might have made during therapy inviting the possibility of a posttermination testimonial.
- ☒ A psychologist used testimonials from current clients on a website advertising his Internet-based counseling services.
5.06 In-Person Solicitation
Standard 5.06 prohibits psychologists from soliciting business from individuals who, because of their particular circumstance, are vulnerable to undue influence. The standard addresses business solicitation behaviors often characterized as “ambulance chasing.” Individuals who are current or potential therapy clients/patients are specifically identified as vulnerable in this standard. Others who may be vulnerable to undue influence are individuals whose loved one has just committed suicide or a person who is abusing drugs or alcohol. Psychologists are prohibited from approaching these individuals either directly or through another person to solicit business if the psychologist has not been invited by the individual or a legally authorized representative to do so.
The standard does not prohibit psychologists from establishing a professional relationship with persons in therapy with another professional or who are otherwise vulnerable to undue influence if the person approaches the psychologist for services (see also Standard 10.04, Providing Therapy to Those Served by Others).
The standard does not preclude psychologists from approaching a family member or significant other to invite them to participate in collateral treatment to benefit a client/patient with whom a psychologist has a professional relationship.
Need to Know: HIPAA Marketing Prohibitions
Under the HIPAA Omnibus Rule (2013), clients/patients must sign an authorization to permit their protected health information (PHI) to be used for marketing purposes or sold to third parties. This means that psychologists or members of their treatment team cannot send communications to a list of clients/patients about new services that they or their organization may be offering unless the client/patient has signed a prior agreement form to receive marketing materials.
Although not explicitly prohibited in the language of Standard 5.06, psychologists should be wary of issuing public statements, brochures, and web-based or other descriptions of services that are intended to exploit populations vulnerable to undue influence by generating fear and anxiety (Shead & Dobson, 2004).
- ☒ A clinical child psychologist sought to generate clients by speaking to breast cancer survivor support groups about “serious psychological disorders of childhood” that “often” emerge in children as a reaction to maternal illness.
- ☑ A psychologist treating an adult woman for bulimia, with the patient’s permission, invited her husband to participate in family therapy sessions where the focus was on the woman’s health. Whether the husband was currently in therapy with another professional was not an issue because the reason he had been approached was to participate in therapy where the wife was the identified patient (see also Standard 10.02a, Therapy Involving Couples or Families).
Disaster and Community Outreach
The standard also explicitly permits psychologists to approach individuals to provide disaster or community outreach services. Psychologists may offer emergency services to individuals who are distraught or otherwise vulnerable as a result of a natural or other type of disaster. However, compliance with this standard will depend on other related ethical issues, including (a) the extent to which individuals are capable of giving informed consent to treatment while dealing with immediate trauma and loss (Standards 3.04, Informed Consent; 10.01, Informed Consent to Therapy); (b) whether psychologists have the competencies to provide services under disaster conditions and, if not, whether they are the best suited professional available to aid individuals during the emergency (Standards 2.02, Providing Services in Emergencies; 3.04, Avoiding Harm); and (c) whether the intent to provide services is based on actual community needs or on the psychologist’s own professional or personal needs (Standards 3.06, Conflict of Interest; 3.08, Exploitive Relationships; see also Schwartz, Hunt, Redwood-Campbell, & de Laat, 2014).
Within the fields of mental health and geriatric health services, it is generally recognized that older adults may not spontaneously self-refer for mental health services. A variety of outreach activities have been used in public and private services for older adults that involve approaching persons who are not thinking of seeking psychological interventions, educating them about the benefits of mental health intervention, and encouraging them to seek such help. Such outreach is permissible under Standard 5.06.
Hot Topic: Avoiding False and Deceptive Statements in Scientific and Clinical Expert Testimony
When research and professional psychologists provide oral testimony or prepare written reports for legal proceedings conducted in the public domain, they are engaging in public statements as defined under Standard 5.01a, Avoidance of False or Deceptive Statements, of the APA Ethics Code. As articulated in Principle C: Integrity, psychologists seek to promote accuracy, honesty, and truthfulness in the science and practice of psychology. When forensically relevant statements or reports misrepresent facts through commission or omission, psychologists can be in violation of Standard 5.01a. False, deceptive, or fraudulent statements most often emerge in legal contexts when psychologists lose their objectivity as a consequence of misunderstanding the psychologist’s role, conflicts of interest, or susceptibility to attorney influences. This Hot Topic identifies and suggests preventive actions to avoid these ethical pitfalls.
Navigating Relationships With Attorneys
Engagement in the legal system thrusts psychologists into dynamic relationships with attorneys whose role obligations will sometimes converge but often conflict with the ethical responsibilities of psychologists.
Understanding Distinctive Roles
The rules embedded within constitutional, civil, and criminal law ensure that justice is served by protecting the rights of each party in a dispute to control what information will be placed into evidence and debate its legal merits. The primary responsibility of attorneys is therefore to advocate on behalf of their client and ensure that the party they represent has presented the best case possible before the court.
By contrast, in the legal context, the primary responsibility of psychologists serving as expert witnesses is to provide the triers of fact (e.g., the judge, jury, administrative hearing officer) with the information they need to make determinations about the legal question at hand. The primary responsibility of psychologists providing opinions to the court is therefore to advocate for the facts and not for the legal position advanced by either of the disputing parties (Brodsky & Gutheil, 2016; Melton, 1990). The objectivity necessary to advocate for the facts can be compromised when psychologists’ legal opinions are influenced by pressure from the retaining attorney.
Prior to trial, the retaining attorney may pressure the psychologist to provide an opinion that goes beyond or is unsupported by the scientific or clinical data. Anticipating this possibility provides the psychologist with the opportunity to establish boundaries between the expert’s objective role and the attorney’s advocacy role (Bush et al., 2006; Woody, 2009).
Initial conversations with the retaining attorney should clarify the boundaries of competence within which the psychologist will testify (Standard 2.01f, Boundaries of Competence). Psychologists should also clarify their obligation to offer an honest opinion based on available facts (Principle C: Integrity). Shuman and Greenberg (2003) recommended that the initial conversation be followed up with a retaining letter from the attorney documenting the issues on which the psychologist will be asked to testify.
Avoiding Bias in the Collection and Interpretation of Forensic Data
In the legal context, biased expert testimony can cause significant harm to the legal system and its stakeholders if it misleads the triers of fact into unfounded legal determinations (Principle A: Beneficence and Nonmaleficence; Standard 3.04, Avoiding Harm).
Inferential and Confirmation Bias
Data collection and interpretation biases can result in misdiagnosis, selective data collection, inaccurate and misleading expert reports, and fraudulent or deceptive statements in court (Bull, 2015; Deidan & Bush, 2002).
The following behaviors should be avoided:
- Seeking out information to confirm the litigant’s argument or the psychologist’s own theoretical or personal view (Bush et al., 2006; Neoh & Mellor, 2009; Shuman & Greenberg, 2003; Stern, 2001)
- Overreliance on diagnoses with which the psychologist is most familiar
- Over- or underattribution of behaviors to situational versus stable personal characteristics
- Preconceptions or initial impressions resistant to challenge by conflicting data
- Reliance on reconstructive memory to fill in gaps in evidence or failure to adequately record facts that arise during evidence collection (Deidan & Bush, 2002; Otto & Martindale, 2007)
Strategies to reduce the potential for such biases include the following:
- Generating alternative hypotheses (Bush et al., 2006)
- Using comprehensive batteries for forensic assessments
- Carefully recording all facts uncovered during pretrial data collection
- Examining which facts support and challenge initial impressions or preconceptions (Deidan & Bush, 2002)
- Guarding against assumptions that the attorney has provided all relevant facts and asking for pleadings and legal memorandums and competing perspectives of stakeholders in the legal case at hand (Saks & Lanyon, 2007; Shuman & Greenberg, 2003)
Resisting Requests to Alter Reports
Irrespective of the format in which the expert’s opinion will be provided, psychologists are ethically required to maintain accurate records of their work for the period of time in which the documentation may be needed to ensure the accuracy of their testimony (Standard 6.01, Documentation of Professional and Scientific Work and Maintenance of Records).
In their advocacy role, retaining attorneys may ask psychologists to modify their report in ways that bias information or opinion in favor of their client. Compliance with Standard 5.01a, Avoidance of False or Deceptive Statements, requires that psychologists deny such requests. If an attorney’s suggestion represents a valid factual correction, the correction should either be presented in an amendment to the original document or be included in a clearly identified revision of the report with a written rationale for the modification (Bush et al., 2006).
Acknowledging the Limitations of Data or Conclusions
Psychologists should always anchor their scientific opinions to available empirical data and their clinical opinions to collected data. False or deceptive statements emerge in forensic testimony or reports when psychologists fail to adequately indicate limits to the certainty with which clinical data or research findings can diagnose or predict conclusions drawn about individuals (Standards 5.01a, Avoidance of False or Deceptive Statements; 9.06, Interpreting Assessment Results).
Misuse of Psychologists’ Work
Attorneys will often attempt to control the nature of oral testimony to omit facts that would hurt their case or inaccurately represent the psychologist’s statements to support their client’s case. To take reasonable steps to correct the misrepresentation of their work, psychologists who provide expert testimony must be familiar with the judicial rules governing their ability to correct misstatements regarding their testimony (Standards 1.01, Misuse of Psychologists’ Work; 2.01f, Boundaries of Competence).
For example, attorneys often attempt to limit an expert’s comments to yes or no responses. Psychologists should be aware that some jurisdictions provide expert witnesses greater leeway than other witnesses in requesting the court’s permission to qualify their statements when they believe attorney questioning has created confusion or misrepresentation of their opinion. Another strategy for limiting attorneys’ ability to misrepresent their findings is for psychologists to avoid declarative oral or written statements that do not reflect the balancing of facts that contributed to their opinion.
Limiting Attorney Attempts to Impeach Testimony
Opposing attorneys will often attempt to impeach the credibility of an expert witness. In addition to the recommendations discussed above, forensic psychologists should be prepared to counter accusations of conflict of interest and inadequate qualifications and to competently address hypothetical and difficult questions during cross-examination (Eisner, 2010).
Maintaining Objectivity and Avoiding Bias: The Importance of Self-Evaluation
In their reports, responses to discovery requests, or testimony, forensic psychologists do not misrepresent, by omission or commission, their evidence or participate in partisan attempts to subvert the presentation of evidence contrary to their own opinion or the legal position of the retaining party. Prior to agreeing to serve as an expert witness, psychologists are encouraged to engage in the following forms of self-inquiry regarding possible biases that might lead to false or deceptive testimony (Bush et al., 2006; Fisher, 1995; Gutheil & Simon, 2004; Saks & Lanyon, 2007):
Conflicts of Interest
- Will financial interests influence my willingness to go beyond my expertise or the facts to give opinions supporting the attorney’s case?
- Am I tempted to sell my testimony for monetary gain?
- Am I fearful an objective opinion will deter the attorney from hiring me in the future?
- Am I being sought because of a reputation for providing opinions consistently favoring the retaining party?
Personal and Professional Bias
- Have I already determined the nature of the testimony I will provide based on the attorney’s initial description of the case?
- Am I unduly influenced by sympathy for the plaintiff or defendant?
- Does the case touch upon a personal issue?
- Will I use my testimony to advocate for a cause I believe in?
- Will moral, religious, political, or other biases intrude upon my ability to present all sides of the issue?
- Do I have a special relationship with the attorney or the attorney’s client that would impair my objectivity?
- Do I know the attorney or litigant socially?
- If these relationships are present, to what degree will I feel pressure to change my opinion if it is in conflict with the litigant’s legal argument?
Chapter Cases and Ethics Discussion Questions
Dr. Challen, a psychologist working at a university counseling center, wanted to develop his own fee-based web resource page that would provide advice to college students on how to overcome test anxiety. The advice would be prepackaged “tips” based on students’ responses to a survey he created for the website. To attract a large national representation of students to the website, he planned to use Facebook advertising targeted to individuals whose Facebook profiles indicated they were in college and who “liked” existing Facebook pages on test anxiety. Discuss the ethical issues that Dr. Challen would need to address in describing his web-based service and his advertising plan.
Dr. Abrantes, a developmental psychologist specializing in sexual and gender minority (SGM) youth health, agreed to appear on a panel for a Sunday morning cable news program. She was informed that the topic was on the design and evaluation of college faculty- and staff-training programs developed to increase SGM-sensitive and affirming campus environments, an area she felt competent discussing. Minutes before the program began, one of her former undergraduate students was also seated at the panel table. Dr. Abrantes was surprised when the moderator began the discussion by asking the student to describe her unfavorable experiences as an SGM student at Dr. Abrantes’s university. The moderator then turned to Dr. Abrantes for comment. Discuss the nature of the ethical quandary that Dr. Abrantes finds herself in and how she might best respond to the moderator’s question and additional questions she might be asked during the half-hour program.
Dr. Kovacs, a licensed forensic psychologist, agreed to conduct a forensic assessment of a defendant accused of being an accomplice in a robbery. The hiring attorney told Dr. Kovacs that the defendant had a medical history of bipolar disorder and that, during the robbery, she had been in a manic state due to her inability to afford psychotropic medication prescribed by a clinic doctor. The initial assessment did not yield any current indications of mania or depression. The defendant told Dr. Kovacs that she was currently taking lithium and that, during the week the robbery took place, she did not sleep much, spent money excessively, and believed she was about to become rich. Questions about her medical and social history did not provide a clear picture of behavioral or mood patterns typical of bipolar or other affective disorders. Despite multiple requests, the attorney had not provided Dr. Kovacs with the defendant’s prior medical records but was pressuring the psychologist for his forensic report, noting that Dr. Kovacs had received an initial payment for administering the forensic interview and that the hearing at which Dr. Kovacs was expected to testify was scheduled for the next week. Discuss the ethical challenges Dr. Kovacs is facing and steps he should take to ethically resolve this dilemma.