Wrong. By its own language, the APA ethics code, an extra-legal code of ethics of a private trade association, requires compliance "consistent with law". In the law, there is a hierarchy of authority. Higher authorities control lesser authorities. At the top is the U.S. Constitution, and the case law interpreting it, recognizing fundamental rights of fairness, due process, and cross-examination. Below that are federal statutes that supersede state laws. Below that come state laws, constitutional, statutory, and case law. Below that come administrative regulations. At the very bottom is the law of private contract, such as the APA regulations -- or the contracts of nonparties who, with advance knowledge of those contracts, voluntarily, and for profit, have injected themselves, their data, and the purported conflict of interest they create into other persons' issues and litigation. That was "purported conflict". There actually is no "conflict". Lower authorities that refer to exceptions "otherwise required by law" are indicating that they must be interpreted consistent with that higher legal authority, and that their mandates are subordinate to it. Thus, it is neither "reasonable" nor "consistent with law" to posture that a private contract might supersede the requirements of the constitution.Doing so repeatedly, as some psychs do in case after case, speciously pretending to ignorance and confusion, is frivolous, unsupportable, sanctionable conduct. |
Wrong. The Administrative Code regulating psychology, albeit a step up from private contract, cannot be interpreted by a thinking individual as law that competes with, conflicts with, or modifies higher legal authority or more compelling constitutional rights. The lower authority rules still must be interpreted in a manner that is consistent with those constitutional rights and superseding law. In the United States of America, we do not permit Court of Star Chamber proceedings, in which the underlying data upon which expert opinions are based, gets to be kept secret from the litigants. Since that's not an option, there's nothing for a court properly to decide. The claim of having to defend a board complaint is spurious. The likelihood of a board complaint being prompted by response of a forensic witness to a subpoena issued in litigation is less than miniscule. Additionally, if a frivolous board complaint is going to be filed, no court order will prevent it, and it still will have to be defended (easily). Finally, the psych trade lobbies have pushed for all kinds of malpractice immunities to hinder litigants from lodging even valid complaints in connection with family law cases, so the protestation is ridiculous on multiple grounds. (In part, these codes and industry regulation schemes are self-serving trade promotion and protection. For example, see Tana Dineen: "Psychological Illusions: Professionalism and the Abuse of Power" Presented at the Symposium: (Ab)Using Power: The Canadian Experience. Vancouver, B.C. May 8, 1998. A revised version of this paper is available in (Ab)Using Power: The Canadian Experience. Boyd, Susan C., Chunn, Dorothy E. and Menzies, Robert (Eds). Halifax, NS: Fernwood Publ. 2001. Available at http://tanadineen.com/writer/writings/index.htm ) See additional discussion below on the Florida code. |
Wrong. This is a two-part assertion, and both parts are wrong. First, the APA ethics code does not control higher legal authority. If and to the extent it is incorporated into psychology regulations, it still does not control over higher legal authority. And, with regard to the presumed prohibition on delivering this material to litigants and their lawyers, the APA Code does no such thing. See Are Psychologists Hiding Evidence? Second, laying aside that the APA guidelines primarily address clinical practice, there is no research evidence anywhere establishing generally that preventing the release of forensic psychology test data and other assessment records to "people untrained to use them" will protect anyone, or ever has protected anyone, or, conversely, that the release of such records in general has harmed or will harm anyone. While this all sounds plausible, and it is possible creatively to imagine situations in which such harm theoretically could result, it is simply not established as a general rule. (And there is nothing in psych evals that is worse than what comes into the public court records otherwise in these cases.) On the other hand, it is axiomatic in the law that deprivation of due process and the right of cross examination is a fundamental harm. In addition, misuse and misinterpretation of test data by psychs themselves, the lack of validity of many of the tests, the lack of interrater reliability, and high controversy over the efficacy and use of many of these tests also is well-known. See, e.g. Misuse of Psychological Tests in Forensic Settings: Some Horrible Examples Ralph Underwager and Hollida Wakefield, available at http://deltabravo.net/custody/misuse.php and http://www.ipt-forensics.com/library/special_problems13.htm |
Wrong. The psych's attempted "appeal to authority" is an error of both logical reasoning and legal reasoning. The National Academy of Neuropsychology is not a legal authority. The Specialty Guidelines for Forensic Psychologists is not law, and its authors are not legal authorities. A dozen more me-toos from psych trade organizations would add not a whit of weight. All these arguments stand as evidence that psychs by reason of their training do not know what constitutes legal authority, do not understand or appreciate the justice system, and do not belong in courts of law. See Child Custody Evaluations: Reevaluating the Evaluators |
Wrong. More appeal to (non)authority. And repeating the speculative assertion of prospective harm does not make it more correct. There is no research evidence anywhere establishing that preventing the release of forensic psychology test data and other assessment records actually protects or ever has protected anyone other than those with an interest in making money from selling or using these instruments. |
Wrong. This argument confounds copyright interests ("public domain"), which are specific persons' and groups' profit-motivated interests, with generalized public harm from, presumably, the public's need to be able to take psych tests. (Also note the difference from the standpoint of a test taker between a test administered in a forensic setting and one administered for the purpose of receiving therapy.) |
Wrong. The LSAT and other similar standardized tests are not analogous. First, they have sufficient validity that test questions can be changed from administration to administration without devastating the test. In other words, they are real tests, testing real things, with actual right and wrong answers. Second, the test protocols, scoring methods, past test questions, and practice questions routinely are distributed by the test publishers to future test takers, with no great hue and cry about public harm occurring because some people practice for them and others do not. And, even if the exact questions on the test about to be taken are not given out, the substance of what will be asked in the questions is -- and is expected to be studied. |
Wrong. What do psychologists, other mental health professionals, school personnel, test publisher employees, researchers, judges and lawyers who deal with forensic experts, and every other person who at some point in the past took one of these tests do "if dementia is suspected or if they develop a brain tumor"? The argument is nonsense -- and would be even if persons with brain tumors or dementia were clever enough to recall and set about cheating on psych tests (and wanted to), and even if there also were not actual medical tests for these things. (The hypothesis of lawyer regulators possibly requiring a lawyer in the future to take a psych test is not only fantasy, but a transparent attempt to align himself on a superior peer-level with the judge versus the attorneys in the case, hoping in this way to persuade him to quash the subpoena by planting the suggestion that the lawyers are seeking discovery for unethical reasons, not for the purpose of adequately representing their clients. If a psych makes this argument, it's a bell ringer that he's a slick willy, further supporting the need for full, unfettered discovery.) |
Wrong. Misinterpretation of test scores and unintended consequences of test usage is exactly why full and unfettered discovery of ALL underlying data and testing materials is mandatory whenever these things are used in a forensic setting. Because virtually always, that misinterpretation is by psychs, not by litigants. |
Wrong. The case isn't close to on-point. It involved an employer with a testing program who rejected certain applicants, and who was sued by the union. The employer refused to disclose the test data of employees who had been promised confidentiality. The material implicated employee privacy concerns and was trade secret of the actual defendant in the case. It was not prepared by a forensic expert in anticipation of being used as part of the foundation of his paid opinion in a court case. |
SEPT standard 11.8 states that test users have the responsibility to respect test copyrights. When purchasing psychological tests, psychologists agree to uphold copyright laws. |
Wrong. It is not a violation of copyright to turn over materials in response to a subpoena for discovery, or to make photocopies of the materials for use in connection with litigation. Period. This falls squarely within the fair use exceptions. (Compare the psychs' concerns with articles copyright. Not. http://www.thelizlibrary.org/liz/custody-evaluator-quotes.html#muchconcern ) |
Wrong. One: Private contracts of unrelated third parties who are not in privity with court litigants do not change these other people's constitutional rights. |
I have a [conveniently self-serving] letter here from the test publisher... the import of the publisher's position is that these materials are trade secrets. |
Wrong. Material that is readily sold, that is available to competitors, that is in the publicly-accessible files of the Library of Congress, that is discussed in articles and published in books that also are available to the public, and that is not kept by the test publisher from tens of thousands of psychs is not a trade secret. While test publishers individually indeed may have various trade secrets, they do not include material in the possession of competitors and industry-wide third party users. Trade secret law is utterly inapplicable, because its purpose is to protect competition -- to protect one business from its competitors. Once material is shared within the industry, trade secret law no longer applies. Interestingly,psychs here have the same issues that magicians do, in that they attempt to keep material secret from the public but the material is well-known in and among the industry competitors. |
The materials under consideration can and will be released only to a qualified professional designated by the attorney. |
Wrong. Neither the lawyer nor the self-represented litigant are obligated to breach attorney work product and disclose their consulting expert to the psych in order to obtain discovery. Nor are they obligated to expend yet more money and hire yet another psych, if they have not already done so, in order to obtain discovery. Moreover, even if they happen to agree with this demand, because it costs them nothing, because a consulting psych already is on the case and at the ready, the contortions of turning the material over to a member of the lawyer's litigation team, a contractor or employee working under and reporting to the lawyer, are inane and pointless. All of these persons, including the lawyer, are working for and paid by the client; they will be sitting 'round the table, discussing, copying, sharing the material, and consulting with each other in preparation for trial. |
Should the Court decline the current motion to quash, it is requested that the Court issue a protective order requiring Dr. Yaddayadda's file first to be subject to in-camera review. |
Wrong. This is a violation of the parties' due process rights. Discovery of these materials was a foreseeable event when the psych voluntarily, and for a fee, injected them into other people's court proceeding. The situation is not akin to necessary proceedings that might ensue when a patient's records are subpoena'd from a therapist. Here, there is no valid reason for the materials to be reviewed in advancein camera. Such a review implies a possible need to cull materials that might not be discoverable. |
Wrong. Lawyers are their clients' agents, not their handlers. The client is the principal, i.e. the boss.A lawyer not only is under an ethical obligation to communicate with his client, but as a practical matter, cannot adequately prepare his client's case without doing so. Moreover, the lawyer not only needs to disseminate the material to his client, but both need time to contemplate the material, review it multiple times as necessary, refer to it in deposition, and possibly consult with other lawyers or mental health professionals about it. It is the client's, not the lawyer's case. (See Ethical Problems: Why Therapeutic Jurisprudence Must Be Eliminated From Our Family Courts |
Wrong. It's evidence in the case (and the litigant paid for the copying charges). The material provides the foundation for evidence that may be introduced into the record in one way or another. It thus may be needed at a rehearing, at subsequent hearings, or on appeal. It is evidence upon which decisions may be made that thereafter will be the law of the case. Some courts, after the fact at some ostensibly safe point in time, may agree to seal a court record, but this is utterly inappropriate in any case in which a child's custody remains open for continued redetermination. It also unwarrantedly hinders litigants from filing justifiable board complaints where necessary for malfeasance. |
Noted authorities on ethical principles of psychologists have stated that "Psychologists may ask the Court for [i.e. expect the court to give them] a protective order to prevent the inappropriate disclosure of confidential information or suggest that the information be submitted to another psychologist for qualified review" [Here's the proud psych's sample motion] C.B. Fisher, The National Psychologist, Test data standard most notable change in new APA ethics code (January/February 2003) , p 12, citing Ethical Practice in Forensic Psychology: A Systematic Model for Decision Making, by Bush, Connell, & Denny, APA Books, pp 106 (2006) |
Wrong. On all counts. These are not authorities at law -- they are psychs with various self-interested motives. This is not "confidential information". And the third-party receiving psych doesn't apply in the forensic context. Interestingly, one of the rationales psychs used back when lobbying for increased forensic evaluations in the family courts was that these would protect litigants' confidential therapy records. The public stupidly went along with this reasoning, as if psychs have objective ways of knowing the invisible, as if they are similar to physicians who might do a blood test and diagnose a condition. The APA ethics code also requires psychologists to adhere to certain guidelines and procedures in administering and interpreting tests. Without permitting the lawyer access to all the information required to enable him to investigate whether this was done and to cross-examine the psych, there is no way to establish compliance with these other ethical guidelines. Discovery is necessary to verify the psych's compliance with the ethical requirement that "Psychologists only use tests in appropriate ways" (such as when the use is empirically validated by research). Discovery is necessary to ascertain whether "Assessment results have been interpreted in light of the limitations inherent in such procedures." And, among other things, discovery is necessary to ferret out bias, corruption, and incompetence -- which are rampant among psychologists in family court. See 1987 Grisso, "The Economic and Scientific Future of Forensic Psychological Assessment, American Psychologist: "There is almost no empirical information concerning how to use parents' Wechsler or MMPI results to make inferences about their abilities to perform specific parenting functions." See 1993 Brodzinsky, "On The Use and Misuse of Psychological Testing in Child Custody Evaluations," Professional Psychology: Research and Practice: "Many lawyers and judges have an unrealistic view of what psychological testing can accomplish." "There is often an assumption, sometimes expressed overtly, that testing provides a scientific foundation for the forensic evaluation. In other words, it allows the evaluator to go beyond the subjective nature of 'clinical impression' or 'clinical judgment' that is inherent in interviews and observations." "There is a view that psychological tests allow the evaluator to be truly objective and therefore unbiased. This assumption is, of course, naive." See 1997 Melton, Petrilla, Poythress, and Slobogin, Psychological Evaluations for the Courts, 2d ed.: "It is our contention that such tests are often used inappropriately. Tests of intellectual capacity, achievement, personality style, and psychopathology are linked only indirectly, at best, to the key issues concerning custody and visitation." "Apparent practices notwithstanding, we recommend the use of traditional psychological tests only when specific problems or issues that these tests were designed to measure appear salient in the case." |
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Wrong. Judges sometimes are. That's why we have appellate courts. Lawyers too. That's why I've written this. And psychs? Count on it. It's time to get the psychs out of the family courts. |