CHAPTER 1
Introduction

Psychologists' early contact with the legal system can be traced back to the early 20th century when Hugo Munsterberg, in On the Witness Stand: Essays on Psychology and Crime (1908), made many proposals about what psychology had to offer the law. Around this same time, other psychologists began evaluating wayward youth and testifying about their specific needs in the newly developed juvenile courts (Otto & Heilbrun, 2002; Travis, 1908). But it has only been within the past half century that forensic psychology has come into its own as a specialty. In 1969, the American Psychology-Law Society—an interdisciplinary group of professionals who shared an interest in the intersection of psychology and law—was formed (Crocker & Kovera, 2010). In 1978, with a $1000 grant from that society, the American Board of Forensic Psychology was established (Kaslow, 1989). The mission of the American Board of Forensic Psychology was and remains to certify psychologists who are competent to provide forensic services. In 1991, the Specialty Guidelines for Forensic Psychologists were published by the American Psychology-Law Society (Committee on Ethical Guidelines for Forensic Psychology, 1991); they were revised and approved by the Council of Representatives of the American Psychological Association (APA) in 2012 (APA, 2013b). In 2001, the APA recognized forensic psychology as an applied specialty.

Overview and Context

Forensic psychology has long been dominated by the evaluation of litigants in civil and criminal proceedings. Considerably less attention has been paid to specialized treatment of forensic populations. Nonetheless, the primary activities of forensic psychologists involve assessment and treatment — much like their counterparts in more traditional therapeutic settings, such as hospitals, clinics, community mental health centers, and private offices. But the differences between practicing in forensic and therapeutic settings are considerable and have been documented by many (see, e.g., Appelbaum & Gutheil, 2007; Greenberg & Shuman, 1997; Heilbrun, Grisso, & Goldstein, 2009; Heilbrun, DeMatteo, Marczyk, & Goldstein, 2008; Lipsitt, 2007; Martindale & Gould, 2013; Melton, Petrila, Poythress, Slobogin, Lyons, & Otto, 2007; Weissman & DeBow, 2003). As summarized in Table 1.1, there are a number of dimensions on which therapeutic, forensic examination, and forensic treatment roles can be compared. These include the identified client and service recipient, the decision maker on aspects of service provision, the goals of service, the psychologist's role as it affects interactions with the service recipient, the nature of privacy matters such as confidentiality and privilege, the kinds of information that are typically accessed and relied on, and the value of diagnosis and psychological testing.1

TABLE 1.1 Therapeutic, Forensic Examination, and Forensic Treatment Roles in Professional Psychology: Comparing Relevant Dimensions

Therapeutic Role

Forensic Examination Role

Forensic Treatment Role

Client

Service recipient

Referral source

Service recipient (and sometimes referral source)

Decision maker

Service recipient

Examiner and referral source

Service recipient (and sometimes referral source)

Goals of service

Improve client's functioning

Provide information to referral source about examinee's functioning as it relates to a legal issue

Improve service recipient's functioning as it relates to a legally relevant capacity, issue or mandate

Psychologist's role

Aligned as advocate

Neutral

Aligned as advocate

Psychologist's obligation

Assist therapy client

Provide information to referral source about examinee's functioning as it relates to a legal issue

Assist service recipient and provide information to referral source

Confidentiality

Traditional psychologist–client confidentiality

None if court ordered; Limited under some circumstances in a retained case

More limited than traditional psychologist–client confidentiality

Privilege

Traditional psychotherapist–patient privilege

Attorney-client privilege in some retained cases

More limited than traditional psychotherapist–patient privilege

Sources of information

Client (with perhaps limited reliance on collateral data and informants)

Examinee (with considerable reliance on collateral data and informants)

Service recipient (with considerable reliance on collateral data and informants)

Importance of diagnosis

Significant insofar as it directs treatment decision making

Limited (depending on legal question)

Significant insofar as it directs treatment decision making

Utility of traditional psychological assessment tools

Significant insofar as it informs diagnostic formulation

Limited, with greater reliance on assessment tools designed for forensic assessment contexts

Significant insofar as it informs diagnostic formulation

Most sources of authority that impact the work of psychologists focus on the provision of services in therapeutic settings. There are a few exceptions (e.g., the Specialty Guidelines for Forensic Psychology, APA, 2013b; the Guidelines for Psychological Evaluation in Child Protection Matters, APA, 2013c), but most of the influences on psychological practice (e.g., state practice acts, federal laws such as the 1996 Health Insurance Portability and Accountability Act [HIPAA], and ethical principles and practice guidelines promulgated by professional organizations) focus on the activities of psychologists when providing therapeutic services. This emphasis and the resulting neglect of the differences between forensic and therapeutic activities in these documents pose a challenge for psychologists practicing in forensic settings. This challenge is the basis for this book.

Some Preliminary Matters

As we begin, we think it important to address a number of overarching and foundational issues. These will recur in discussion throughout the remaining chapters.

Challenging Forensic Psychology's Historical Emphasis on Assessment and Neglect of Treatment

Forensic psychology's identity began with assessment in legal settings. A quick review of the table of contents of mainstream interdisciplinary journals such as Law and Human Behavior, Behavioral Sciences & the Law, and Criminal Justice and Behavior makes it clear that this is still true. But there appears to have been a general shift in thinking about this matter over the last two decades. Perhaps most reflective of this change are differences between the 1991 version of the Specialty Guidelines for Forensic Psychologists (Committee on Specialty Guidelines, 1991) and the revised Specialty Guidelines for Forensic Psychology (APA, 2013b). Whereas the 1991 forensic practice guidelines do not address treatment in any meaningful way, guideline 4.02.03 of the revised guidelines explicitly discuss “forensic treatment” and how it can be distinguished from treatment of a client whose involvement in litigation bears no relationship to the treatment itself.

Although some therapeutic services can be considered forensic in nature, the fact that therapeutic services are ordered by the court does not necessarily make them forensic.

In determining whether a therapeutic service should be considered the practice of forensic psychology, psychologists are encouraged to consider the potential impact of the legal context on treatment, the potential for treatment to impact the psycholegal issues involved in the case, and whether another reasonable psychologist in a similar position would consider the service to be forensic and these Guidelines to be applicable.

Although most of our discussion in this book addresses ethical matters encountered when conducting forensic psychological evaluations, we will, at times, consider treatment issues as well.

Distinguishing Ethics from Good Practice and from the Law

This is not a book about how to conduct forensic psychological evaluations or provide treatment to different forensic populations. There are other resources for that (e.g., Melton et al., 2007; Weiner & Otto, 2014; also see the many titles in the Oxford University Press series Best Practices in Forensic Mental Health Assessment). The focus of this book is ethics—the ethical practice of psychology when providing forensic services. Nonetheless, we sometimes incorporate good forensic practice when considering ethical issues. Ethical guidelines contribute in important ways to decisions and behavior in professional practice. Law, standards of practice, science, and one's own values also contribute. Even though these areas can overlap, we focus on ethics in this book—but with the caveat that ethics is only a part of what should shape professional behavior.

It can be particularly difficult to discuss ethical obligations without considering legal obligations. Thus, throughout this...