http://www.thelizlibrary.org/therapeutic-jurisprudence/custody-evaluator-testing/index.html
Disclosure of Psychological Test Data and Materials
Arguments
made by custody evaluators for not complying with discovery. Why their
arguments are wrong. PDF
By Elizabeth J. Kates, Esq.
I cannot release these materials because am ethically required by the APA "to
make reasonable efforts to maintain the integrity and security of tests
and other assessment techniques consistent with law, contractual
obligations, and in a manner that permits compliance with the APA Ethics
code" (Standard 9.11, Maintaining Test Security).
The APA Ethics Code, Standard
9.11, Maintaining Test Security (Ethical Principles of Psychologists and
Code of Conduct of the American Psychological Association http://www.apa.org/ethics/code2002.html).
|
| Wrong. By
its own language, the APA ethics
code, an extra-legal code of ethics of a private trade association, requires
compliance "consistent with law". See the
"Specialty Guidelines for Forensic Psychology" adopted
by the APA Council of Representatives August 3, 2011.
In the law, there is a hierarchy
of authority. Higher authorities control lesser authorities. At the top
is the U.S. Constitution, and the case law interpreting it, recognizing
fundamental rights of fairness, due process, and cross-examination. Below
that are federal statutes that supersede state laws. Below that come state
laws: constitutional and statutory, and their case law. Below that come administrative
regulations. At the very bottom is the law of private contract, such as
the APA regulations -- or the contracts of nonparties who, with advance
knowledge of those contracts, voluntarily, and for profit, have injected
themselves, their data, and the purported conflict of interest they create into other persons'
issues and litigation.
But that was "purported conflict". There actually is no "conflict". Lower
authorities that refer to exceptions "otherwise required by law"
are indicating that they must be interpreted consistent with that higher
legal authority, and that their mandates are subordinate to it. Thus, it
is neither "reasonable" nor "consistent with law" to
posture that a private contract might supersede the requirements of the
constitution. Doing so repeatedly, as some psychologists do in case after
case, speciously pretending to ignorance and confusion, is frivolous, unsupportable,
sanctionable conduct.
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|
The
APA ethics code is not merely private, because in this case it is incorporated
into state law, either statutory, or in the regulations governing psychologists'
conduct, so it's also the law. I have to be governed by it. I understand your argument, but I want a court order. I don't want
an ethics complaint that I have to defend, even if I ultimately prevail.
For this reason, I cannot respond to a subpoena -- even one that is considered
to have the force of law, but must
[resist discovery and waste other people's
time and money to] get a judicial ruling to resolve my
[self-created]
conflict.
|
| Wrong. The
Administrative Code regulating psychology, albeit a step up from private
contract, cannot be interpreted by a thinking individual as law that
competes with, conflicts with, or modifies higher legal authority or more
compelling constitutional rights. The lower authority rules still must
be interpreted in a manner that is consistent with those constitutional
rights and superseding law. In the United States of America, we do not
permit Court of Star Chamber proceedings, in which the underlying data
upon which expert opinions are based, gets to be kept secret from the litigants.
Since that's not an option, there's nothing for a court properly to
decide.
The claim of having to defend a board complaint is spurious (and who is going to file it?). The likelihood of a board complaint being prompted by
response of a forensic witness to a subpoena issued in litigation is less than miniscule. Additionally, if a frivolous board complaint is
going to be filed, no court order will prevent it, and it still will have to be defended (easily). Finally, the psychology trade lobbies
have pushed for all kinds of malpractice immunities to hinder litigants from
lodging even valid complaints in connection with family law cases, so the protestation
is ridiculous on multiple grounds.
(In part, these codes and
industry regulation schemes are self-serving trade promotion and protection.
For example, see Tana Dineen: "Psychological Illusions: Professionalism
and the Abuse of Power" Presented at the Symposium: (Ab)Using Power:
The Canadian Experience. Vancouver, B.C. May 8, 1998. A revised version
of this paper is available in (Ab)Using Power: The Canadian Experience.
Boyd, Susan C., Chunn, Dorothy E. and Menzies, Robert (Eds). Halifax, NS:
Fernwood Publ. 2001. Available at http://tanadineen.com/writer/writings/index.htm
)
See additional discussion
below on the Florida code.
|
|
The
APA Ethical Code prohibits psychologists from distributing test data and
other assessment records to people untrained to use them, "to protect
a client / patient or others from substantial harm, or misuse, or misinterpretation
of the data or the test" (Standard 9.04a) |
Wrong. This
is a two-part assertion, and both parts are wrong.
First, the APA ethics code does not control higher legal authority. If
and to the extent it is incorporated into psychology regulations, it still
does not control over higher legal authority. And, with regard to the presumed prohibition on delivering this material to litigants and their lawyers, the APA
Code does no such thing.
Second, laying aside that the APA guidelines
primarily address clinical practice, there is no research evidence anywhere
establishing generally that preventing the release of forensic psychology
test data and other assessment records to "people untrained to use
them" will protect anyone, or ever has protected anyone, or, conversely,
that the release of such records in general has harmed or will harm anyone.
While this all sounds plausible, and it is possible creatively to imagine
situations in which such harm theoretically could result, it is simply
not established as a general rule. (And there is nothing in psych evals
that is worse than what comes into the public court records otherwise in
these cases.) On the other hand, it is axiomatic in the law that deprivation
of due process and the right of cross examination is a fundamental harm.
In addition, misuse and misinterpretation of test data by psychologists themselves,
the lack of validity of many of the tests, the lack of interrater reliability,
and high controversy over the efficacy and use of many of these tests also
is well-known.
See, e.g. Misuse of Psychological
Tests in Forensic Settings: Some Horrible Examples Ralph Underwager and
Hollida Wakefield, available at http://deltabravo.net/custody/misuse.php
and http://www.ipt-forensics.com/library/special_problems13.htm
|
|
The National Academy of Neuropsychology (another professional psychology
association) agrees with the APA position, which gives this position even
more weight. The Specialty Guidelines for Forensic Psychologists and the
Standards for Educational and Psychological Testing (SEPT) also agree.
|
Wrong. The
psychologist's attempted "appeal to authority" is an error of both logical
reasoning and legal reasoning. The
National Academy of Neuropsychology is not a legal authority. The Specialty
Guidelines for Forensic Psychologists is not law, and its authors are not
legal authorities. A dozen more me-toos from psychology trade organizations
would add not a whit of weight.
All these arguments stand
as evidence that psychologists by reason of their training do not know what constitutes
legal authority, do not understand or appreciate the justice system, and
do not belong in courts of law. See Child Custody Evaluations: Reevaluating the Evaluators
|
|
The Specialty Guidelines for Forensic Psychologists and the Standards
for Educational and Psychological Testing (SEPT) developed jointly by the
American Educational Research Association, American Psychological Association
and The National Council on Measurement in Education, "acknowledge
the importance of maintaining test security and ensuring that only those
qualified to interpret raw test scores be afforded the opportunity to do
so, for the purpose of preventing harm". |
Wrong. More
appeal to (non)authority. And repeating the speculative assertion of prospective
harm does not make it more correct. There
is no research evidence anywhere establishing that preventing the
release of forensic psychology test data and other assessment records actually
protects or ever has protected anyone other than those with an interest
in making money from selling or using these instruments.
(To the extent that the trade promotion
interests of a third party are in conflict with the fundamental due process
rights of the actual litigants in a court case, it should be remembered
that the third party voluntarily injected itself into the proceedings,
knowing in advance what its interests were, and thus implicitly waived
those interests in deference to the litigants' higher interests in
due process and fundamental fairness.) |
|
Failure to protect test security from unqualified users harms the
integrity of tests because the tests can become invalidated through their
placement in the public domain, thus depriving the public of effective
test instruments. |
Wrong. This
argument confounds copyright interests ("public domain"), which
are specific persons' and groups' profit-motivated interests, with generalized
public harm from, presumably, the public's need to be able to take psychological
tests.
No research
has established that any harm will come to the public if psychological testing
were not available. While it is plausible as an hypothesis, no evidence
establishes this. Indeed, the public managed very well for hundreds of
years without psychological testing and there is no evidence (unlike in the fields
of medicine or dentistry) that the public is better off, more well adjusted,
healthier, or happier, because of the availability of psychological tests.
The allusion
to the copyright issue indicates more truthfully whose and what interests
are of concern to the trade organizations and the test publishers. (THERE IS NO COPYRIGHT ISSUE!
The use falls squarely within the "Fair Use Doctrine" of copyright law!)
Additionally,
the argument raises the question of how it could be that these tests --
if presumably so reliable that they can and should be used in a forensic
setting -- could be so lacking in robustness and so easily corrupted that
they would no longer be useful if a member of the public, determined to
respond honestly in order to obtain therapy, happened to see the test materials
at some prior time because the materials were in a court file, instead
of a college library, where any undergraduate psychology major might peruse
them.
The argument
begs the question of what all the people who DO have knowledge of these
tests do if these tests are presumably so needed by the public. Don't psychologists
ever require therapy? How about other mental health professionals, school
personnel, test publisher employees, researchers, judges and lawyers who
deal with forensic experts, and every person who at some point in the past
already took one of the tests? The argument is nonsense. The real interest
at stake, the real motive for the forensic psychologist's recalcitrance,
has nothing to do with concern for public welfare (and very likely not even so much concern for
complying with test publishers' admonitions as interest in protecting the individual psychologist from scrutiny).
|
For example, the Law School Admission Test (LSAT) would be invalid
if the answers to the LSAT were released and placed in the public domain.
Similarly,
psychological tests cannot be made public without invalidating the tests,
just as examinations are invalid if the questions are published in advance.
|
| Wrong. The
LSAT and other similar standardized tests are not analogous.
First,
they have sufficient validity that test questions can be changed from administration
to administration without devastating the test. In other words, they are
real tests, testing real things, with actual right and wrong answers. Second,
the test protocols, scoring methods, past test questions, and practice
questions routinely are distributed by the test publishers to future test
takers, with no great hue and cry about public harm occurring because some
people practice for them and others do not. And, even if the exact questions
on the test about to be taken are not given out, the substance of what
will be asked in the questions is -- and is expected to be studied.
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|
It is not in the interests of non-psychologists to become familiar
with test protocols and test items because they may eventually need to
be tested, for example, if early dementia is suspected or if they develop
a brain tumor, or have other possible needs that may arise for future
testing such as a disciplinary proceeding before the State Bar. When
people have previously seen the tests, they themselves cannot be tested
in a valid way. |
Wrong. What
do psychologists, other mental health professionals, school personnel,
test publisher employees, researchers, judges and lawyers who deal with
forensic experts, and every other person who at some point in the past
took one of these tests do "if dementia is suspected or if they develop
a brain tumor"?
The argument is nonsense -- and would be even if persons with brain tumors
or dementia were clever enough to recall and set about cheating on psych
tests (and wanted to), and even if there also were not actual medical tests
for these things.
(The hypothesis of lawyer regulators possibly
requiring a lawyer in the future to take a psychological test is not only fantasy, but a transparent attempt to align himself on a superior peer-level
with the judge versus the attorneys in the case,
hoping in this way to persuade
him to quash the subpoena by planting the suggestion that the lawyers are seeking discovery for unethical reasons, not for the
purpose of adequately representing their clients. If a psychologist makes this argument, it's a bell ringer that he's
a slick willy, further supporting the need for full, unfettered discovery.)
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|
SEPT standard 11.15 addressing the potential for misinterpretation
of test data states that "Test users should be alert to potential
misinterpretation of test scores and to possible unintended consequences
of test use; users should take steps to minimize or avoid foreseeable misinterpretation
and unintended negative consequences". [So
we have to withhold them from litigants and their lawyers who would like
to twist around my words and cross-x me on my conclusions.] |
Wrong. Misinterpretation
of test scores and unintended consequences of test usage is exactly why
full and unfettered discovery of ALL underlying data and testing materials
is mandatory whenever these things are used in a forensic setting. Because
virtually always, that misinterpretation is by psychologists, not by litigants.
[UPDATE 11/01/11: This lawyer now has
also has seen a case in which a corrupt custody evaluator changed litigants' raw test scores before sending
them off for computerized "analysis".]
No research
has established any harm befalling the general public from lay persons
misinterpreting these tests (or the handy computer printouts of suggested
diagnoses). On the other hand, psychological tests routinely have been manipulated
and misused by forensic opiners in court cases -- and elsewhere -- to make
specious arguments that have harmed many persons. The integrity of the
court system takes so much priority over the asserted need for integrity
of these dubious psychological instruments that this argument should be a nonstarter
for any judge worth his salt. |
|
The rationale for test security protection as a public policy issue
to prevent harm was upheld in Detroit Edison v. NLRB, 440, U. S. 301 (1979),
where-in the United States Supreme Court ruled that test security pre-empted
the release of test results in the form of data and records to someone
other than a qualified professional. |
Wrong. The
case isn't close to on-point.
It involved an employer with a testing program who rejected certain applicants,
and who was sued by the union. The employer refused to disclose the test
data of employees who had been promised confidentiality. The material implicated
employee privacy concerns and was trade secret of the actual defendant
in the case. It was not prepared by a forensic expert in anticipation of
being used as part of the foundation of his paid opinion in a court case.
Compare: "On Oct. 24, 1995, in the case of Sharon L. and Warren E. Campbell v. Barry A. Mashek
(Iowa District Court Consolidated Law Case No. 65070), the Fifth Judicial District of Iowa found the section of the Iowa
code restricting release of test data to be unconstitutional under both federal and state law. In that case, several experts,
including the renowned testing expert Dr. Paul Meehl, testified by affidavit that, 'Allowing a psychologist to offer opinions at trial,
which are not subject to full and fair examination, based on the underlying test data, is repugnant to the basic principles of science
and would fundamentally hinder any neutral body, such as a jury, in trying to arrive at valid conclusions about the condition of an
individual who has put their psychological condition at issue by bringing a lawsuit.'" -- Paul R. Lees-Haley, Ph.D., and John C. Courtney, Psy.D. in
Are Psychologists Hiding Evidence?
|
|
SEPT standard 11.8 states that test users have the responsibility
to respect test copyrights. When purchasing psychological tests, psychologists
agree to uphold copyright laws. |
Wrong. It
is not a violation of copyright to turn over materials in response to a
subpoena for discovery, or to make photocopies of the materials for use
in connection with litigation. Period.
This falls squarely within the fair use exceptions.
If and to the
extent the test publisher markets its products for its own profit for intended
use in court, it also has knowingly, and in advance, thereby agreed to
any publication that foreseeably ensues in connection with those court
proceedings, because those proceedings ordinarily should be expected to
comport with due process.
There is an
easy solution if the test publisher or the forensic psychologist doesn't like
this. Don't use these instruments for forensic work. It is validly
argued that by doing so, the psychologist deliberately, and for his own financial
gain and self-aggrandizement, cavalierly set in motion a contract violation
of his own doing. He cannot, after doing so, and after setting up a [purported]
conflict of interest -- a dilemma of his own making -- now place the burden
of rectifying that malfeasance on other people's time, money, and fundamental
rights. A subpoena quash or protective order is an equitable remedy --
and the psychologist and the test publisher have dirty hands and cannot come into
court midstream, changing their tune and begging for protection at others'
expense and detriment.
|
|
Not to expose test materials to unauthorized non-qualified users,
is part of my contractual obligation with the publishers, Psychological
Assessment Resources (PAR) and Pearson Assessments, of all tests used in
the present case. |
Wrong. One: Private
contracts of unrelated third parties who are not in privity with court
litigants do not change these other people's constitutional rights.
Two: Litigants and lawyers are not "unqualified users" in connection with a court case.
(See Lees-Haley and Courtney, above).
And three: If
and to the extent the test publisher markets its products for its own profit
for intended use in court, then it has knowingly, and in advance, thereby
agreed to any publication that foreseeably ensues in connection with those
court proceedings, because they may be expected to comport with due process.
(If arguendo it has not done so, that means that the psychologist
deliberately, knowingly, in advance, and for his own financial gain,
breached his own contract. He thus has dirty hands and cannot obtain equitable relief from the consequences of his own wrongdoing at innocent others' expense and detriment.)
|
|
I have a [conveniently self-serving] letter here from the test publisher...
the import of the publisher's position is that these materials are trade
secrets. |
Wrong. Material
that is readily sold, that is available to competitors, that is in the publicly-accessible files of the Library of Congress, that is discussed
in articles and published in books that also are available to the public, and that is not kept by the test publisher from tens of thousands
of psychologists and others is not a trade secret. While
test publishers individually indeed may have various trade secrets, they
do not include material in the possession of competitors and industry-wide
third party users. Trade secret
law is utterly inapplicable, because its purpose is to protect competition
-- to protect one business from its competitors. Once material is shared within the industry, trade secret
law no longer applies. Interestingly, psychologists here have the same issues that magicians
do, in that they attempt to keep material secret from the public but the
material is well-known in and among the industry competitors.
(As an aside, it also is not an argument to
prevent discovery to claim that publications are available elsewhere. Even
when they are, the specific materials within the particular possession
of the psychologist remain discoverable to ascertain whether they have been altered,
written on, contain notes, are complete, are up-to-date copies, and so
forth.) |
|
Ken Pope's website says that Pearson says that HIPAA says that disclosure
"may be denied if the protected health information was compiled in reasonable anticipation of,
or for use in a civil,
criminal, or administrative action or proceeding"!
[45 C.F.R. 164.524(a)(1)(ii)]
|
The test publisher is self-serving up a line of legal B.S.
A forensic evaluator in this context is not functioning as a "covered entity" or
"health care provider" under HIPAA, and the
psychological "health" information being newly generated by the forensic
for the specific purpose of creating data to form the basis of his opinion in court is
not "protected health information". (Ken Pope's website has somewhat** more appropriate
opinions in the O'Connell-Koocher article at
http://www.kspope.com/ethics/hipaa.php)
These HIPAA provisions were intended to address
such things as the gathering and holding of (usually multiple) clients' health records by personal injury
lawyers on
their computer systems, or of medical malpractice lawyers and insurers who have collected
patient records and summaries in connection with
their preparing for litigation involving the hospital. Moreover, the forensic should
not be getting access to
-- and thus should not be in possession of --
litigants' individual private medical or therapy records absent a prior court order or the
litigant's own submission of these materials for consideration (which by definition, constitutes
consent for their use in the litigation).
(Note to the really deeply confused forensic psychs
playing lawyer (See Borkosky, infra), who are arguing that disclosure does or doesn't apply because of HIPAA,
etc. etc.: stop it.
Either way you are making the argument, you are wrong. If you are a court-appointed testifying witness, then
HIPAA does not apply because due process
and the integrity of evidence in the justice system derives
from higher law than HIPAA.)
[** The multifarious
consents, contracts, and CYA "understandings" -- informational, methodological, and
financial -- routinely demanded
by many psychologists to be signed by litigants
who are court-ordered (this includes "agreed orders") to submit to
evaluations (or therapy) are not necessary or appropriate, and constitute legal overreaching.
Individuals under the duress of a court order to "cooperate" cannot consent (or "assent" -- same thing) to anything
as to which they cannot withhold consent without suffering negative repercussions. Court-mandated psychologists also have no business requiring
signed receipts of "notices" about procedures, or
confidentiality (or giving any other kinds of legal advice). All of these documents,
no matter how innocuous you may think them, in fact alter litigants' legal obligations
and/or positions (why the psychologist is wanting a signature), but since it's involuntary on the part of the litigant,
it belongs in the court order or not at all. Have procedural info? Give a handout, no signing.
(Note: Obtaining informed consent prior to
doing a one-sided litigant- or attorney-instigated (i.e. voluntary, not court-ordered) assessment
in preparation for trial (privileged work product unless and until it -- again voluntarily -- later may or may not
become disclosable in court in connection with the same litigant's
proffered expert testimony) is a very different
creature. A psychologist who does not understand the difference has,
at a minimum, demonstrated
himself to be incompetent to assess or treat issues involving domestic violence, duress or coercive control.)]
|
|
The materials under consideration can and will be released only to
a qualified professional designated by the attorney. |
Wrong.
Neither the lawyer nor the self-represented litigant are obligated to breach attorney
work product and disclose their consulting expert to the psychologist in order
to obtain discovery. Nor
are they obligated to expend yet more money and hire yet another psychologist,
if they have not already done so, in order to obtain discovery. Moreover,
even if they happen to agree with this demand, because it costs them nothing,
because a consulting psychologist already is on the case and at the ready, the
contortions of turning the material over to a member of the lawyer's litigation
team, a contractor or employee working under and reporting to the lawyer,
are inane and pointless. All of these persons, including the lawyer, are
working for and paid by the client; they will be sitting 'round the table,
discussing, copying, sharing the material, and consulting with each other
in preparation for trial.
(Lees-Haley and Courtney, supra, also argue that there is no actual
definition of a "qualified professional" and that for purposes of litigation, the litigant and his lawyer are it.) |
|
Should the Court decline the current motion to quash, it is requested
that the Court issue a protective order requiring Dr. Yaddayadda's file
first to be subject to in-camera review. |
Wrong. This
is a violation of the parties' due process rights. Discovery
of these materials was a foreseeable event when the psychologist voluntarily,
and for a fee, injected them into other people's court proceeding. The
situation is not akin to necessary proceedings that might ensue when a
patient's records are subpoena'd from a therapist. Here, there is no valid
reason for the materials to be reviewed in advance in camera. Such
a review implies a possible need to cull materials that might not be discoverable.
In the latter case, the potential harm to the
discovering litigant is balanced against the rights of an unwitting, involuntary
person who actually may have trade secrets or privacy issues, but has had
them unexpectedly subpoena'd. It is an effort of last resort that risks
biasing the fact finder (the judge, in a custody case) with out-of-court
material that has not been introduced into the proceedings by the parties.
This risk makes it a procedure that is neither fitting nor appropriate
under forensic circumstances, over and above it being a pointless drain
on the court's and everyone else's time and resources. (That a court-appointed
evaluator would request this indicates either deliberate recalcitrance
or ignorance of a degree that calls into question the rest of his judgment.) |
|
Should the Court decline the current motion to quash, it is requested
that the Court issue a protective order that the file be distributed only
to the attorneys representing each party in the current litigation, and
that they be ordered not to disseminate it to anyone else. |
Wrong. Lawyers
are their clients' agents, not their handlers. The client is the principal,
i.e. the boss. A
lawyer not only is under an ethical obligation to communicate with his
client, but as a practical matter, cannot adequately prepare his client's
case without doing so. Moreover, the lawyer not only needs to disseminate
the material to his client, but both need time to contemplate the material,
review it multiple times as necessary, refer to it in deposition, and possibly
consult with other lawyers or mental health professionals about it. It
is the client's, not the lawyer's case.
In addition, the client may wish to consult
with another lawyer for a second opinion, who may not be disclosed to his
attorney of record, or to discharge his lawyer of record and proceed with
another lawyer, or on his own. This is nobody else's business.
A lawyer may not enter into agreements that
hamper his client in this way, or prevent his client from obtaining alternate
counsel in this way, or which place the lawyer into a contractual conflict
of interest with his own client, in favor of the psychologist or some test publishing
company to whom the psychologist alleges he is beholden. Nor can a judge validly
restrict the attorney-client relationship in this way, or countermand the
attorney-client representation or rules of ethics that come from higher
legal authorities.
Finally, no one else is entitled to know --
or to receive assurances or explanation -- of the communications that will
transpire between the lawyer and client, or the procedure they will follow
in connection with preparing the case. These are matters that are absolutely
privileged, and may not be encroached upon by a court (or any third party)
as a favor to the psychologist in lieu of compelling him to fork over the materials
or else be held in contempt or barred from testifying.
The psychologist in essence is claiming that he
has deliberately set upon a course of action moving toward his own foreseeable
breach of asserted obligations to third parties, and now -- with his dirty
hands -- comes to the court for equitable relief on other people's dime
and time. And to their detriment. (So much for the great professed
concern for public welfare.)
It is true that some courts grant these requests.
Not infrequently they are doing so as a gratuitous concession to the psychologist,
posturing as if there were some actual issue to resolve, because this permits
them to not have to impose mandatory discovery sanctions against the ignorant
losing party (the psychologist). This is wrong and indicates bias in favor of the forensic, who should know better, and
who should be held to higher standards and required to pay the costs of the proceeding.
Frequently too, because psychologists' reports are turned
in at the eleventh hour, things are in a mad rush to trial, and the parties'
lawyers do not have sufficient time or manpower (or funds) to dork around
having hearings and appeals on these issues (let alone antagonize the court-appointee psychologist who already is wielding unwarranted power with the judge), so in the triage of trial
preparation, they choose their battles and relent. None of it is evidence
that the psychologist, now emboldened by his lack of understanding of what has
been transpiring (rather than being grateful -- as he should be -- to not
have to be footing the bill for his recalcitrance), was correct, not even
a little.
|
|
Should the Court decline the current motion to quash, it is requested
that the Court issue a protective order that the attorneys may not keep
copies of the file, and must return it after Dr. Yaddayadda's reported
evaluation has been examined and cross-examined. |
| Wrong. It's
evidence in the case (and the litigant paid for the copying charges).
The
material provides the foundation for evidence that may be introduced into
the record in one way or another. It thus may be needed at a rehearing,
at subsequent hearings, or on appeal. It is evidence upon which decisions
may be made that thereafter will be the law of the case. Some courts, after
the fact at some ostensibly safe point in time, may agree to seal a court
record, but this is utterly inappropriate in any case in which a child's
custody remains open for continued redetermination. It also unwarrantedly
hinders litigants from filing justifiable board complaints where necessary
for malfeasance. |
Noted authorities on ethical principles of psychologists have stated
that "Psychologists may ask the Court for [i.e. expect the court
to give them] a protective order to prevent the inappropriate disclosure
of confidential information or suggest that the information be submitted
to another psychologist for qualified review" [Here's
the proud psychologist's sample
motion]
C.B.
Fisher, The National Psychologist, Test data standard most notable change
in new APA ethics code (January/February 2003) , p 12, citing Ethical Practice
in Forensic Psychology: A Systematic Model for Decision Making, by Bush,
Connell, & Denny, APA Books, pp 106 (2006)
|
Wrong. On
all counts. These are not authorities at law -- they are psychologists with various
self-interested motives. This is not "confidential information".
And the third-party receiving psychologist doesn't apply in the forensic context.
Interestingly, one of the rationales psychologists used back when lobbying
for increased forensic evaluations in the family courts was that these
would protect litigants' confidential therapy records. The public stupidly
went along with this reasoning, as if psychologists have objective ways of knowing
the invisible, as if they are similar to physicians who might do a blood
test and diagnose a condition.
The APA ethics
code also requires psychologists to adhere to certain guidelines and procedures
in administering and interpreting tests. Without permitting the
lawyer access to all the information required to enable him to investigate
whether this was done and to cross-examine the psychologist, there is no way to
establish compliance with these other ethical guidelines. Discovery is
necessary to verify the psychologist's compliance with the ethical requirement
that "Psychologists only use tests in appropriate ways" (such
as when the use is empirically validated by research). Discovery is necessary
to ascertain whether "Assessment results have been interpreted in
light of the limitations inherent in such procedures." And, among
other things, discovery is necessary to ferret out bias, corruption, and
incompetence -- which are rampant among psychologists in family court.
"There is almost no empirical information
concerning how to use parents' Wechsler or MMPI results to make inferences
about their abilities to perform specific parenting functions."
"Many lawyers and judges have an
unrealistic view of what psychological testing can accomplish."
"There is often an assumption,
sometimes expressed overtly, that testing provides a scientific foundation
for the forensic evaluation. In other words, it allows the evaluator
to go beyond the subjective nature of 'clinical impression' or 'clinical
judgment' that is inherent in interviews and observations."
"There is a view that psychological
tests allow the evaluator to be truly objective and therefore unbiased.
This assumption is, of course, naive."
See 1997 Melton, Petrilla,
Poythress, and Slobogin, Psychological Evaluations for the Courts, 2d ed.:
"It is our contention that such tests
are often used inappropriately. Tests of intellectual capacity, achievement,
personality style, and psychopathology are linked only indirectly, at best,
to the key issues concerning custody and visitation."
"Apparent practices notwithstanding,
we recommend the use of traditional psychological tests only when specific
problems or issues that these tests were designed to measure appear salient
in the case."
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FLORIDA LAW
(similar to a number of other states): Florida Administrative Code, 64B19-18.004
Use of Test Instruments... There are three exceptions to the prohibition
against the release of test data. What are they, what do they mean, why
are they there, and when do they apply:
"A
psychologist who uses test instruments may not release test data, such
as test protocols, test questions, assessment-related notes, or written
answer sheets, except
To
the extent not superseded by federal medical privacy law, the first exception above is
what you do with records requested by a patient or his representative,
when you are the therapist and there is no court proceeding.
2)
after complying with the procedures set forth in Rule 64B19-19.005, F.A.C.,
and obtaining an order from a court or other tribunal of competent jurisdiction
or
The
second exception is what you do when your or your patient's confidential
therapy records are subpoena'd in litigation that otherwise has nothing
to do with you and in which you were not planning to testify.
Item
#3 is not redundant, and doesn't mean the same thing as #2, "get a
court order." The third exception is for what you do when you are
a forensic witness in a court case, and receive a subpoena.
FORK IT OVER.
Maintaining
the transparent, fundamentally fair operation of our justice system is
not merely the law; it's a precept upon which the United States of America
was founded.
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I have this 2009 article here by Paul Kaufman in which he claims that some trial
courts, including in Florida, have
agreed that the psychologist doesn't have to produce test materials or data,
Lees-Haley and Courtney is outdated, there are new laws...
I have a 2012 article by Borkosky
in which he proves that HIPAA applies, so I can't disclose...
Paul Kaufman,
Protecting Raw Data and Psychological Tests from Wrongful Disclosure:
a primer on the law and other persuasive strategies, 23 The Clinical Neuropsychologist 1130 (2009).
Borkosky, B. G., & Pellett, J. (2013). Can forensic evaluators refuse to
release records to evaluees because the records are "information compiled
in reasonable anticipation" of litigation (as
defined by HIPAA)?. American Journal of Forensic Psychology, 31(3). P.
21-40. http://www.forensicpsychology.org
Borkosky, B. G., Pellett, J., & Thomas, M. (2013). Are Forensic Evaluations
"Healthcare" and are they Regulated by HIPAA? Psychological Injury and the
Law, (published online).
doi: 10.1007/s12207-013-9158-7
Borkosky, B. G. (2012). Why forensic records are no longer "owned" by the
referral source: Requirements for psychologists to permit patient access
and release of records. Florida
Psychologist, 63(1), 8-9, 22-23. http://www.flapsych.com/.
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Wrong.
The magician did not pull a rabbit out
of the hat just because someone fell for the trick.
There are no new arguments or applicable law. More lawyers
prevail on these issues than do not. More and more also are
demanding advance resolution of discovery issues
prior to allowing a forensic evaluation to proceed, so as not to set in motion a
pointless waste of time and money that will only
culminate in the psych being barred from
testifying, the psych's report not being entered,
or a miscarriage
of justice that harms
people before it can be rectified by an appellate court. The public is starting
to understand that there is little reliable science in psychology, and nothing about
being licensed in it that renders the individual
a repository of truth or a fiduciary of the court system. (And their too-frequent crappy cognitive processing
or bias-laden synapse misfiring analytical skills --
the psych arguments on this web page being the prima facie case in point -- makes discovery of the basis of
their opinings all the more crucial.)
January 5, 2014, note from Dr. Borkosky: "[T]he following is a misquote of all my articles:
I have a 2012 article by Borkosky in which he proves that HIPAA applies.
I have stated, in every article, that HIPAA does NOT regulate disclosures
pursuant to discovery or psychotherapist-patient privilege... HIPAA
specifically and freely permits disclosures to the legal system, so it has
no practical effect, even if the court were to consult it."
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This judge... that court... this lawyer... that
judge... this court... said, commented, did, didn't, agreed, understood,
cooperated, granted, gave, told, exalted, praised... me-me, me me, meme...
blah-blah, blah yadda, blah-blah... |
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