Law impacts psychology

By Richard Lawlor, Ph.D., J.D.
May 1, 2010



Over the past several years many articles have appeared in this newspaper for practitioners dealing with various aspects of psychology and the law. Some dealt with a substantive area of psychology and its impact on the law, for example research on children’s memories and the implications for interviewing children and using them as witnesses.

Another area that seems to get hit or miss attention is the impact of certain legal developments on the practice of psychology. Most psychologists have probably been exposed to an outline of malpractice law and the various elements that go into a malpractice claim. They have also probably been exposed to suggestions on how to handle that situation should it “arrive” in their own practices.

On the other hand, psychologists generally do not have a strong introduction to the various sources of American law, including constitutional law, statutory law, case law and administrative law. Each of these areas, in various ways, has an impact on the practice of psychology, and psychologists need to be aware, in a systematic way, how this occurs.

It is also important for psychologists to have a thorough understanding of not only their own licensing or certification laws but also the licensing or certification laws of anyone working under their supervision. Psychologists need to be aware of the scope of practice sections of various mental health professionals’ laws that they might be required to supervise. A supervising psychologist cannot grant another mental health practitioner the right to do some type of mental health practice beyond the scope of that practitioner’s law.

Another area that is often misunderstood is psychology licensure laws and the codes of conduct that are contained in them. A psychology licensing statute is technically a grant of a right to the psychologist to practice a subset of medicine. In that regard, it is much like statutes that deal with dentists, nurses, podiatrists, chiropractors, etc. Issues relating to confidentiality as well as privileged communications are often found in the licensure laws of psychologists, often along with exceptions to these areas.

The role of psychologists in criminal law, for example, in evaluating people for insanity defenses or for competency to stand trial, is usually spelled out by statute and it is important that psychologists understand the legal basis for these evaluations as they do them.

Similarly, if psychologists become involved in child custody areas, they need to understand the law relating to child custody. The dangers of psychologists getting inadvertently involved in this type of situation have recently been discussed. (See Younggren, The National Psychologist, September/October 2009; and Williams, The National Psychologist, November/December, 2009).

This article is not oriented toward an in-depth discussion of any of these issues. However, it does seem that we as a profession need to systematically train practitioners in this area where, in a variety of ways, the law significantly impacts our practices. Current training is hit or miss.

Psychologists who become sub-specialized in the area of forensic psychology typically have a subset of psychology where they have developed expertise, for example, custody evaluations. In order to do those competently, the psychologist needs to understand the research that underlies that particular area of practice. Similarly, psychologists need to understand the legal statutes, case law and administrative laws of their jurisdictions that impact all of the areas in which they practice.

Perhaps the time is right for a group of psychologists with varying areas of expertise in law and psychology to put together a suggested curriculum that could be adapted by the training programs in various jurisdictions to help prepare graduate students during the course of their education in psychology and to provide ongoing education to practitioners as they develop various types of practices.

Without a general overview of the impact of law on psychology, psychologists often end up walking into a minefield that they do not know is even there. Curricula could be developed that would systematically alert psychologists to areas of the law they need to be familiar with. It could also introduce to the psychologist the fact that the law itself is a constantly changing scene.

For example, Daubert v. Merrell Dow Pharmaceuticals Inc., [509 U.S. 579 (1993)] and its progeny have changed the face of expert testimony, with some courts seriously exercising the judicial role of gatekeeper before allowing expert testimony.

A psychologist who has to testify in court needs to understand the impact of Daubert and its various successor cases on the role of expert witnesses and the potential limitations on expert witness testimony.

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Richard Lawlor, Ph.D., J.D., retired after 35 years as a professor in the Department of Psychiatry at Indiana University School of Medicine. He was the director of the psychology internship program for 10 years and chief of the outpatient forensic child psychiatry service for 10 years.

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