Forensic evaluations include Social Security examinations, competency and sanity evaluations in criminal cases, independent psychological evaluations, court-ordered psychological testing and child custody evaluations.
For each of these, the individual who is being evaluated is not a client of the psychologist conducting the evaluation. The person being evaluated needs to understand through an informed disclosure of the fact that the evaluation does not constitute treatment, nor is it intended as an assessment for purposes of treatment by the forensic examiner.
For obvious reasons, psychologists do not want to establish a psychologist-client relationship with a Timothy McVeigh, who may be the subject of a court-ordered sanity evaluation, or a Ted Kaczynski, the Unabomber, for purposes of a court-ordered competency evaluation. From a legal perspective, the fact that no psychologist-client relationship exists in a forensic evaluation means that no legal basis exists for the filing of a malpractice claim against the psychologist who performs the examination.
Because a psychologist-client relationship does not exist in a forensic evaluation, the forensic examiner should not use the standard Treatment Contract or Disclosure Statement that is required to obtain informed consent from clients for treatment. Instead, a Forensic Disclosure Form should be used to inform the subject of the evaluation about the basic purpose and process involved.
In compliance with the APA Ethics Code (2010), psychologists conducting forensic evaluations must comply with Ethical Principle 9.01 by ensuring that the opinions, recommendations and evaluative statements contained in their reports are based upon information that substantiates the findings.
In addition, psychologists must comply with Ethical Principle 9.03, which requires informed consent for assessments except when an evaluation is court-ordered or mandated by law. “Informed consent” implies that a client has the right to consent to treatment or not. However, when a forensic examination is court-ordered, the individual ordered to undergo the forensic evaluation is required to submit to the evaluation, not to consent to it. What disclosures must be made in such a situation by the forensic examiner?
APA Ethics Code (2010) Principle 9.03 requires an informed disclosure process, which includes an explanation of the nature and purpose of the evaluation, the fees and a disclosure of who will pay the fees, information concerning the involvement of third parties and limitations on confidentiality.
In addition, this ethical principle requires a sufficient opportunity for the subject of the evaluation to ask questions and receive answers concerning the process. Typically, a forensic examiner should be prepared to explain that a report will not automatically be provided to the individual who is the subject of the evaluation and that any questions concerning access to the report should be directed to the individual’s attorney.
In discussing the limitations on confidentiality, the forensic examiner should disclose that information provided in the forensic evaluation is not confidential to the extent that it will be shared with the court or governmental agency that ordered the report or for whom the evaluation is being conducted, as well as the attorneys involved in any litigation process. By providing such informed disclosures in writing, the psychologist who conducts a forensic examination complies with the ethical principles for such evaluations.
Denis K. Lane Jr., JD, is an attorney at the Center for Professional Studies in Colorado Springs, Colo. The focus of his practice for more than 35 years has been mental health law and representation of mental health professionals. He is author of The Legal Guide for Practicing Psychotherapy in Colorado (Colorado Bar Assoc. 2016) and serves on the Ethics Committee for the American Mental Health Counselors Association (AMHCA). His email is Denis@ethicalstudies.net.
January 5, 2021
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