Ethical Guidelines and Principles

Ethics is a term used to describe the guiding philosophies and/or moral values of a group or an individual. Although ethics are by definition theoretical in nature, they are the underlying principles that help guide the conduct of any given society, profession, or individual.

This research paper reviews important concepts for understanding the application of ethical principles to the practice of forensic psychology. It addresses issues such as identifying the intended beneficiary of forensic services, the application of the principle of beneficence/nonmalfeasance, and the relevance of existing professional standards and guidelines. It then summarizes four of the major elements of ethical forensic psychological practice: competency, judgment, responsibility, and accountability.

Intended Beneficiary of the Forensic Product or Service

A critical aspect of ethical practice is the clarification of the forensic task(s) to be provided and the acquisition of informed consent from the intended recipient(s) of those services, which should occur prior to providing forensic services. This includes clarification of at least the following areas:

• What is the forensic psychological service being requested?
• What is the risk-benefit analysis for any recipient or client receiving or not receiving the service?
• What is the product of this service?
• Who is the direct recipient of provision of this service?
• Who is the retaining client for this service?
• Who is the ultimate beneficiary of this service?

Forensic psychological service most commonly refers to any service that is undertaken for the purpose of, or with the anticipation of, assisting a third-party decision maker or trier of fact. This may refer to services provided at the request of an attorney, judge, or court order, as well as other third parties such as an insurance company, licensing board, employer, parole board, or other administrative body, or pursuant to applicable law, statute, or contract. Forensic psychological services may include multiple elements, such as a record review, psychological testing, clinical interviews, collateral interviews, and a review of current professional literature. Or such services may be narrower in scope, such as providing consultation to an attorney by reviewing relevant records and summarizing applicable professional literature. What usually defines a service as forensic is the fact that it is under-taken for the purpose of providing psychological information about a party to a third party, generally in the context of an adjudicative decision-making process.

It is important to note that a service that was not originally intended for the purpose of assisting a third-party decision maker is not usually considered a forensic psychological service, even if it is eventually used as evidence in a decision-making process. For example, a psychologist who has provided treatment to a criminal offender may be called on to testify at the parole board hearing; but in doing so, the psychologist is not providing a forensic service (as the primary purpose of therapy is to help the offender and not to assist a third-party decision maker), and the psychological testimony would be provided within the role of therapist-expert as opposed to a forensic expert. Whether or not such information is ultimately of use to a third-party decision maker is a separate issue from whether the work was undertaken for that purpose.

Unlike other types of psychological services, the beneficiary of forensic psychological services is not the party who is being evaluated. On the contrary, the services undertaken by the forensic practitioner may be harmful to the offender, either directly (e.g., if the evaluation portrays the examinee in a negative light) or indirectly (e.g., if the evaluation harms the examinee’s legal case). Similarly, although psychologists are traditionally regarded as serving in a helping capacity, the product of a forensic psychologist may be seen as directly or indirectly harmful to other parties involved in the legal matter (e.g., providing consultation to an attorney that helps exonerate an alleged perpetrator may be perceived by some as harming the alleged victim). Therefore, in the forensic context, psychologists are still “helping professionals,” but the role of the forensic psychologist is to be helpful to the court and only incidentally to any other party or counsel.

What each of these scenarios has in common is the fact that the direct beneficiary of the forensic psychological service is not any one individual but, rather, the court or other tribunal in which the forensic psychological service is being used. That is, the forensic practitioner is trying to help the third-party decision maker by applying his or her scientific, technical, expert knowledge to the psycholegal issue. Regardless of the outcome of the matter, the forensic psychologist has helped by participating in the process. Accordingly, the indirect beneficiary of forensic psychological services is society itself, as we all benefit from the appropriate use of expert knowledge to facilitate a fair and accurate judicial process.

A separate issue from who is the beneficiary of forensic psychological services is the question of who is the client of the forensic psychologist on any particular matter. Typically, the client is the referring party; that is, the party requesting forensic psychological services—usually an attorney, judge, or administrative body. The client may also be another individual professional, such as when a psychologist is asked by a forensic psychiatrist or master’s-level forensic examiner to conduct psychological testing. In most cases, the client of the forensic practitioner is someone other than the party who is being examined.

Beneficence and Nonmalfeasance

For all psychologists, a governing ethical standard is “to produce good” (beneficence) and “to do no harm” (nonmalfeasance). This is a critical aspect of forensic psychological practice as well. However, unlike most psychological practice, the commitment of beneficence/nonmalfeasance is not to the party who is being examined by the forensic practitioner but, rather, to the client of the forensic services. Indeed, the party being examined may very well be harmed by the outcome of the forensic psychological examination (consider the losing party in a custody dispute), but the court benefits from the “good” produced by the forensic psychologist (whose purpose in a custody dispute is to serve the best interests of the child). Even in a case where the client of the forensic services is an individual attorney (who has, e.g., retained a forensic psychological consultant to review records and examine his or her client in a personal injury matter) and the result of the forensic services is not favorable to the attorney’s client (e.g., the opinion of the forensic psychologist is that the client’s psychological problems are primarily a result of factors other than the claimed acts), the forensic practitioner has nonetheless helped the attorney by providing him or her with important psychological information about his or her client and/or case prior to entering a courtroom. This information provides the attorney with possible strategies for structuring the case, approaching settlement, and presenting evidence at trial. Furthermore, the psychological information directly benefits the court by potentially expediting the judicial process (e.g., if the case settles rather than moving to a full-blown trial) and indirectly benefits society as a whole (i.e., by facilitating due process). In these ways, the forensic practitioner has fulfilled a commitment to beneficence/nonmalfeasance regardless of the content of the opinion provided to the attorney.

Guidance: Standard of Care (EPPCC) and Aspirational (SGFP)

In considering the application of ethics to a profession, it is important to distinguish between standards of care and aspirational guidelines. A standard of care is a required and enforceable mandate that directs professional conduct and decision making. The goal of a standard is to provide the minimum expectations for a particular profession. When a professional has violated such a code of conduct, a governing body may seek recourse and enforce consequences to that professional. With regard to the practice of forensic psychology, standards of care are defined and enforced by the American Psychological Association’s Ethical Principles of Psychologists and Code of Conduct (EPPCC). However, these standards are designed primarily to govern the profession of psychology in general and not designed specifically for the practice of forensic psychology.

An aspirational guideline, or principle, is similar to a standard in that it provides professionals with information to help guide their conduct and professional judgment. Unlike a standard, however, an aspirational guideline is not a mandate; nor is it enforceable. Accordingly, aspirational guidelines are expected to be integrated with other relevant sources of information to help guide professional decision making. For forensic practitioners, aspirational guidelines have been provided by the American Psychology-Law Society’s Specialty Guidelines for Forensic Psychologists (SGFP). The goal of these guidelines is to help inform forensic practitioners and guide professional judgment in the practice of psychology and the law. Four major themes of professional guidelines to be reviewed here include competence, judgment, responsibility, and accountability.

Technical and Substantive Competence

In forensic psychological practice, one can conceptualize two major types of competence: technical and substantive. Technical competence refers to the parties and the experts having met the deadlines and other technical requirements to be “legally qualified” to testify on a particular issue. These competencies are mostly identified in Civil Rules 26 and 35 and to a lesser extent in the Rules of Evidence. For example, a court may decide that an expert is technically not “qualified” to testify if the subject matter of the expert’s preferred testimony was not adequately disclosed or if a written report signed by the expert was not provided in a timely manner.

Substantive competence refers to whether the forensic practitioner has the requisite expertise, scientific knowledge, and experience to be helpful to the trier of fact. The court must be satisfied that the psychologist is adequately qualified to testify by virtue of the psychologist’s education, training, and/or experience; that the preferred testimony is sufficiently based on reliable facts or data; that it is the product of reliable principles and methods; and that the psychologist has applied the principles and methods reliably to the facts of the case. These competencies are mostly identified in the Rules of Evidence and are elaborated on in Frye v. United States (1923) and Daubert v. Merrell Dow Pharmaceuticals (1993).

Professional Competence

A forensic psychologist may have substantive competence in some areas (e.g., child development, psycho-metrics) but not in others (e.g., competency to stand trial, sex-offender risk assessment). Substantive competence should be maintained through ongoing experience, acquisition of knowledge (e.g., reading, continuing education), and/or professional consultation. When expanding one’s expertise by undertaking a new type of forensic service, the ethical forensic practitioner seeks supervision and/or consultation with another forensic psychological practitioner who has established expertise in that area. The ethical forensic practitioner does not misrepresent his or her competence in communications to potential clients, either verbally (e.g., on accepting a referral, during expert qualification) or in writing (e.g., in one’s curriculum vita).

An ethical forensic practitioner should also have some degree of substantive competence with regard to his or her knowledge of the legal system. Although it is not necessary to have competence as an attorney, it is important that a forensic practitioner be aware of the legal aspects of the particular forensic service he or she is providing, such as the elements of the psycholegal question, the examinees’ rights in participating in the examination, and the rules of evidence for providing an expert opinion to the court.

Finally, an ethical forensic practitioner demonstrates an appreciation of individual and contextual differences. Specifically, the forensic practitioner is able to effectively balance his or her knowledge of general psychological principles with his or her understanding of the individual being examined, as well as the context in which an examination is occurring. For example, an individual’s test-taking style may reflect cultural differences rather than clinical psychopathology (e.g., “healthy paranoia” vs. clinical paranoia). Similarly, an individual’s response style may vary greatly from one context to another (e.g., self-disclosure of problems in a personal injury examination may be greater than self-disclosure of problems in a child custody examination) that is consistent with the demand characteristics of that setting and not necessarily evidence of a deliberate effort to distort one’s self-presentation.

Judgment

The judgment of the ethical forensic practitioner should be guided by at least four basic principles: relevance, accuracy, equitable perspective, and candor.

With regard to relevance, the ethical and competent forensic practitioner focuses the scope of his or her examination on the legally relevant factors that are subject to psychological inquiry. For example, when examining an individual’s competency to stand trial, forensic psychological practitioners limit the scope of their examination to assessing whether the individual has an impaired ability to understand the nature of the proceedings against him or her and/or the ability to cooperate with his or her attorney. For any given aspect of an individual’s history to be relevant to the examination (e.g., that the individual was sexually abused as a child), it must be relevant to the psycholegal issue (e.g., does his history of child sexual abuse impair his current functioning?).

An ethical forensic psychologist should also present his or her findings accurately—in other words, with objectivity, impartiality, and nonpartisanship. The role of the forensic psychologist is not to advocate for one “side” or another but, rather, to provide the court with all relevant psychological information so that the court can render its decision.

To maintain accuracy and objectivity, the ethical forensic practitioner should maintain an equitable perspective of the various “sides” of the psycholegal issue and test plausible rival hypotheses for each formulated opinion. For example, a forensic practitioner conducting a personal injury examination should consider all potential causes of an examinee’s psychological damage before rendering an opinion about the damage caused by the alleged tortuous acts.

As part of formulating an equitable perspective, the ethical forensic practitioner should assign fair weight to the data on which the opinion was founded and not be unfairly or unduly prejudicial in presenting the data. For example, a father may have used cocaine on one or two occasions since the birth of a child, but this fact does not, in and of itself, provide evidence of cocaine abuse or dependence—and more important, it does not directly speak to his parenting capacity. Rather, past cocaine use is one data point that must be integrated with other information about the father and weighed against data known about the mother.

Unlike many other types of psychological services, forensic psychology involves the integration of multiple sources of data, including the use of collateral informants. These collateral sources of data may be useful in obtaining information about an examinee that the examinee is unwilling or unable to provide on his or her own. However, in integrating collateral sources of data, the forensic practitioner should be aware of the nature of the relationship between the collateral informant and the examinee and the potential bias inherent in such a relationship. Accordingly, the forensic practitioner should not rely on such data in isolation but, rather, integrate this information with other data to corroborate or disconfirm hypotheses.

And it goes almost without saying, that unless the practitioner is candid about all of the above and the entire examination process, the examiner is putting the desires of the client ahead of the needs of the court. Only by being candid can the expert be most helpful to the court’s understanding of the data collected and opinion formed.

Responsibility

The ethical forensic practitioner has a responsibility to maintain the integrity of the profession. Specifically, they provide services in a manner that is respectful to all parties involved, impartial, accurate, and well documented. It is important that the ethical practitioner recognizes the distinct role of the forensic psychologist and clarifies this role with all parties prior to undertaking forensic psychological services.

Forensic psychological experts are expected to refrain from engaging in role conflicts. They should not provide forensic psychological services when past, present, or future interests or relationships are likely to impair their objectivity (albeit unwittingly). Among the most important role conflicts to avoid is serving in both a therapeutic and forensic role.

Forensic practitioners document all relevant data in the course of their examination, beginning from the moment they can reasonably anticipate that their services may be relied on by a trier of fact. Documentation includes, but is not limited to, letters, handwritten notes, e-mail correspondence, facsimile, recordings, test data, and interpretive reports. When provided with appropriate subpoenas and court orders, all relevant records are made available to the requesting party.

Accountability and Informed Consent

As soon as is feasible, forensic psychological experts obtain informed consent from all parties involved in the provision of forensic psychological services. Informed consent refers to an exchange between the provider of services and the person being examined. The ethical forensic practitioner provides the examinee (as well as the examinee’s attorney) and other recipients of forensic services (e.g., collaterals, nonparty examinees) with as much information as possible about the examination process to help the examinee make an informed decision about whether or not to participate. This information typically should include, but is not limited to, the purpose, nature, and anticipated use of the examination and report, the impartial nature of the examiner’s role, the anticipated methods and procedure for addressing the psycholegal issue, the limitations of scientific knowledge to address that issue, any potential risks of participation, the nonconfidential nature of the examination, the voluntariness of the examination (if not court ordered), relevant fee agreements, and the examinee’s rights and responsibilities.

The Big Picture

The ultimate conceptual goal of good forensic practice is surprisingly easy to identify. As reflected in Evidence Rule 702, expert witnesses are in the unique position among witnesses of being the only witnesses who are allowed to offer opinions if, among other things, their opinion testimony “will assist the trier of fact.” Being misled, having relevant information omitted, hearing opinions that are weighted unfairly, or in any other way being presented information by an expert witness that is distorted rather than trustworthy does not assist the trier of fact in better understanding the evidence. The goal is for the court to be able to trust what experts say and to be able to trust that whatever an expert does say in offering an opinion adequately reflects all that is relevant regarding that opinion, including all reasonable perspectives on that opinion.

References:

1. Committee on Ethical Guidelines for Forensic Psychologists. (1991). Specialty guidelines for forensic psychologists. Law and Human Behavior, 15, 655-665 (revision draft in preparation).
2. Covell, C. N., & Wheeler, J. G. (2006). Revisiting the irreconciable conflict between therapeutic and forensic: Implications for sex offender specialists. American Psychology-Law Society Newsletter, 26, 6-8.
3. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).
4. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
5. Greenberg, S. A., & Shuman, D. W. (2007). When worlds collide: Therapeutic and forensic roles. Professional Psychology: Research and Practice, 38, 129-132.
6. Greenberg, S. A., Shuman, D. W., & Meyer, R. (2004). Unmasking forensic diagnosis. International Journal of Law and Psychiatry, 27, 1-15.
7. Heilbrun, K. (2001). Principles of forensic mental health assessment. New York: Kluwer Academic/Plenum.
8. Melton, G. B., Petrila, J., Poythress, N. G., & Slogobin, C. (1997). Psychological evaluations for the courts: A handbook for mental health professionals and the courts. New York: Guilford Press.