A decade after the 2002 APA Ethics Code and the HIPAA Privacy Rule should have settled the matter many psychologists continue to believe fervently that they have some special ethical duty to resist all formal requests for their raw test data, even when these requests are accompanied by releases from the test taker and even by subpoenas or court orders.
When asked for their test data, some psychologists claim paternalistically that nobody could ever understand what these mysterious numbers mean without being a licensed psychologist. They seem to ignore the fact that we ourselves have an ethical duty (Ethical Standard 9.10; APA, 2002) to provide test feedback (i.e., explaining those numbers), not to mention that most test publishers routinely sell test forms and computerized test interpretations to psychiatrists, social workers, counselors and others.
Other psychologists contend that either test copyrights or licensing agreements with test publishers prevent them from complying with these requests. They overlook the fact that the Fair Use Doctrine under the Copyright Act of 1976 (2011), the legal rights of test takers to their health care information and discovery rules governing the bases for experts’ opinions in forensic matters have consistently trumped these arguments when they have been put to the test (e.g., see Carpenter v. Yamaha, 2006).
What ethical prohibition?
The last refuge of those who struggle to conceal their raw test results as though they were subject to the same security considerations as the secret formula for Coca-Cola is to make vague declarations that releasing the data to anyone but another psychologist is ethically prohibited. But has it ever been? The basis for this notion harks back to the 1992 APA Ethics Code, which enjoined psychologists from “releasing raw test results or raw data to persons… not qualified to use such information” (APA, 1992, p. 1603).
But many failed to notice the phrase I’ve omitted in the ellipsis above, adding a critical exception: “other than to patients or clients as appropriate.” Thus, even from 1992-2002, there was no blanket prohibition on sharing such data with clients (or, presumably, their legal representatives).
Then the feds burst through the door
Of course the 1992 Ethics Code is long obsolete. In the meantime the HIPAA Privacy Rule included raw test data among the health care information to which patients must ordinarily be permitted direct access, either in the form of copies for themselves or to anyone they designate as authorized recipients. Bowing to changes in federal regulations, the current Ethics Code (APA, 2002) made it unmistakable that release of raw test data to non-psychologists is permissible.
According to Ethical Standard 9.04(a): “Pursuant to a client/patient release, psychologists provide test data to the client/patient or other persons identified in the release.” There is some additional language permitting psychologists to refrain from releasing the data in special circumstances, but not routinely and always keeping in mind legal regulations concerning the release of confidential information. One might argue that in a forensic matter, a litigant’s or defendant’s test data are neither covered by the HIPAA Privacy Rule nor are they subject to a “client/ patient” release under Standard 9.04(a), but they still are subject to court rules concerning legal discovery, and nothing in the Ethics Code or the Specialty Guidelines for Forensic Psychologists (APA, in press) suggests that forensic psychologists should not cooperate fully with applicable court rules.
We still have an ethical duty under Ethical Standard 9.11to try to resist simply turning over test materials (e.g., test manuals, items, stimuli and scoring keys) upon request or even when subpoenaed in order to protect test security. The matter becomes somewhat more complicated when test materials and clients’ test data are all mixed together on the same “hybrid” document (in which case the Ethics Code defines all of it as “test data.”)
Balancing test security with test takers’ rights
The day is long since past when it was acceptable for psychologists to make oracular pronouncements about people based on secret knowledge to which only the initiated might have access. But it is still possible to protect test security without violating patients’ rights to their assessment and treatment records and litigants’ rights to the bases for expert testimony. Here are a few tips for how to do this:
- If possible, provide excellent, personalized feedback to test takers.
In clinical matters, ask to provide a detailed written summary of test findings as an alternative to providing copies of the raw data. When clients demand copies of their data, provide a written notice explaining the limits to the Fair Use Doctrine under the Copyright Act of 1976.
- When possible, record test data separately from test items and stimuli.
- In forensic matters, when test materials are required for inspection, request that it be supervised.
- In forensic matters in which test materials or hybrid data are subpoenaed, ask for a protective order prohibiting misuse or redisclosure.
- Work with test publishers’ legal departments when serious threats to test security are encountered.
References available from author
Robert E. Erard, Ph.D., is a clinical and forensic psychologist in Bloomfield Hills, Mich. He is a past president of the Society for Personality Assessment and a co-developer of the Rorschach Performance Assessment System (R-PAS). Erard may be reached at email@example.com.