Practice and Professional Issues in Forensic Neuropsychology

1. Practice and Professional Issues in Forensic Neuropsychology July 31, 2008

2. Sources of Referrals • Retained by individual attorney • communication primarily to one side • can usually (but not always) be discovered by other side • role is varied, depending on referral • Retained by court • communication equally directed to both sides • technically, opinion is for trier of fact • More complicated referrals where it isn’t clear

3. Initial Contacts • agree as to the business aspects of your activity • fees • retainer/prepayment • letter of protection – AVOID! • clarify your role • obtain the information you need; don’t be bashful about making demands for records that aren’t present • educate as to your capabilities • discuss your modus operandi

4. Some thoughts about fees • Established rates for forensic v. ‘treater’ roles: Should they be different? (Yes) • Prepayment and retainers are preferred over billed services • Door-to-door agreements common, but not for sleeping • Get written agreement in advance (often, attorney will have to consult client); get signature from both attorneys • Do not sign a “letter of protection”

5. Practice and Professional Issues • Third party observers • Release of test data • Payment for forensic services • Changing roles • Disclosing tests beforehand • Celebrity death matches – the Physics of forensic work

6. Practice Issue #1: Third Party Observers • Case Scenario:You are retained by the defense to perform an “independent neuropsychological examination”, and the plaintiff’s attorney wants to be present personally, with a court reporter, a videotape, or an audiotape. • WHAT ARE THE ISSUES • WHAT DO YOU DO? • ISSUES • What does Florida law currently say? • Social facilitation/inhibition • Breaches of test security

7. Practice Issue #1 (cont’d): Presence of Third Parties During Evaluation • Issues • public domain release • validity concerns • demand characteristics • impeachment and accuracy concerns

8. Practice Issue #1 (cont’d): Third Party Observers • Recent developments: • G-PIPE Amicus in Berman (TPO) • G-PIPE Amicus in Piccolo (TPO with videotape retained) • Broader issues • If neuropsychologists refuse, what effect does that have on defense’s rights to an IME? • If qualified neuropsychologists refuse, who will do the evaluations? • Trained vs. untrained TPO’s • Resolutions • People vs. video vs. audio • Sharing TPO data only with psychologists? • Trained TPO’s?

9. Practice Issue #2: Release of Psychological Data • Case Scenario: You perform a neuropsychological evaluation at the request of Attorney A. Attorney B subpoenas your entire file, including all of the data and test forms • WHAT ARE THE ISSUES? • WHAT DO YOU DO? • ISSUES: • public domain issue • misuse by untrained parties • copyright infringement

10. Sharing of Raw Data • Raw data governed by several doctrines • APA ethical principles • HIPAA • Copyright issues • See (D40/APPCN/AACN) test release document • Insist on releasing to licensed psychologist (resist other MHP) • If court ordered, request it to be sealed or “in camera”

11. Flow Sheet to Guide Test Release Decision Making Attix, et al., (2007) The Clinical Neuropsychologist, 21(2), 232-238.

12. Practice Issue #3: Changing Roles • Case Scenario:You are the therapist for a patient who subsequently gets into a complicated custody battle. The patient’s attorney asks you to testify as an expert witness • WHAT ARE THE ISSUES • WHAT DO YOU DO? • ISSUES • Transition from advocacy to expert role • Therapy information protected

13. Practice Issue #4: Giving the examinee advanced notice • Case scenario:You are retained by defense attorney A. Plaintiff’s attorney B demands that you name the specific tests you will use to evaluate plaintiff in advance of the evaluation. • WHAT ARE THE ISSUES? • WHAT DO YOU DO? • ISSUES: • Allows the plaintiff to prepare for examination • Allows plaintiff’s expert to object to individual tests, putting each test ‘on trial’

14. Practice Issue #5: Critiquing Another Psychologist • Case Scenario: an attorney tries to retain you, not to provide an independent evaluation but to stay in the background and help the attorney attack a psychological evaluation that was already performed by another psychologist • WHAT ARE THE ISSUES? • WHAT SHOULD YOU DO? • ISSUES • Misdirects appropriate source of corrective action • Public perception of profession • Critiquing psychologist v. conceptualization

15. Evaluation Proper • Keep to the referral question, but let your judgment be your guide • Document everything, including ‘trivial’ matters, telephone contacts, correspondence, etc., because you may be asked to testify about this, or reconstruct it, later • Retain everything until case is over (even if your office floods, like mine has!) • Keep a running account of time spent as you go

16. Evaluation Proper • Develop rationale for your testing approach: know specifically why you have selected particular tests and deleted others; use background information from this course as a guide; know as much as you can about test operating characteristics • Be psychometric-savvy: keep a norms notebook, a reprint file, or other compendium of data to assist you in report preparation and/or testimony (but you may not want to bring this to the depo!!) • Traveling vs. receiving patient:know, and think, about the difference between home and away games

17. Reports • Written or not? Know ahead of time • Comprehensive format with sections • document opening statements and agreements • itemize data relied upon • describe findings • offer psycholegal formulation • simplify language; remember your audience • Routing of report

18. Oral Testimony • Qualifying as expert; stipulation; voire dire • Conferences – issues and pitfalls • Deposition and exhibits • direct examination • cross examination • Sharing or submitting raw data • Trial testimony • Settlement without trial/deposition

19. Forensic Self-Assessment • Decide, for yourself, how much you like, and will invite, forensic referrals • Immersion: how forensic neuropsychology is like functional magnetic resonance imaging • Self-regulation of referral sources • Financial dependency and independence of opinion • Role of board certification

20. Forensic Self-Development • Role of science in forensic evaluation is critical and evolving • Experience and knowledge are both important • Advocate or informant? • Knowing your audience • Clarify your values