Forensic Mental Health Assessments

1. Forensic Mental Health Assessments Best Practice Standards

2. Forensic Mental Health Assessment (FMHA) • How can an attorney tell if a FMHA report is gold or garbage? • Should a treating clinician be asked to prepare a report for court? • Are there ethics that guide FMHA? • What are the best practice standards (BPS) for forensic record keeping, testing and such? • What are common vulnerabilities of FMHA?

3. Why Know FMHA Best Practices? “In the land of the blind, the one-eyed man is king” Or “What you don’t know can hurt you!”

4. Forensic vs. Clinical Roles 10 Key differences • Purpose • Examiner-examinee relationship • Notification of purpose • Who is being served • Nature of standards being considered

5. Forensic vs. Clinical Roles 10 Key differences • Data sources • Response style • Clarification of reasoning & limits of knowledge • Written report • Court testimony

6. Criticisms of FMHA • Ignorance and irrelevance • Failure to focus on the psycho-legal issue • Intrusion • Writing both as examiner and Trier of Fact • Insufficiency and incredibility • “Generally when someone has been found delinquent of a sexual offense and fails their polygraph examination, I recommend an ODYS commitment” (from a Local SO report) • “I saw no evidence of PDD.” No records were sought, nor was the parent interviewed. The child was interviewed for 45-minutes, and had a lifelong history of diagnosis and treatment for PDD. (from a Court Clinic report)

7. Forensic Mental Health Assessment (FMHA) General FMHA Structure: • Preparation for the FMHA • Data Collection • Data Interpretation • Communicating the Results (The following principles draw extensively from the writings and teaching of Kirk Heilbrun, Ph.D. of Villanova University)

8. Preparation for the FMHA • Identify the Psycho-Legal Referral Issue • Qualify the Forensic Examiner • Identify Conflicts of Interest • Clarify the Referring Attorney’s Role • Clarify the Forensic Examiner’s Role • Obtain FMHA Authorization • Determine the FHMA Model

9. Preparation: Identify the Psycho-Legal Issue Ethics: The forensic examiner should have a “fundamental and reasonable level of knowledge and understanding of the legal…standards that govern their participation as experts in legal proceedings.” (APA Specialty Guidelines for Forensic Psychologists) Law: Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” (FRE 401)

10. Preparation: Identify the Psycho-Legal Issue Best Practice Standards: Clearly state the referral question and relevant law at the outset of the report. Professional Acceptance: Established Poor: “John Doe is a 16-year, 7-month-old male who was referred by Magistrate Fair to the Juvenile Court Diagnostic Clinic for psychological evaluation. Of particular concern to the Court is John’s competence to participate in the current proceedings. John is currently before the Court on charges of Violation of a Court Order, Possession of Criminal Tools, Receiving Stolen Property, and Robbery. The Robbery charge also carries Firearm Specifications.”

11. Preparation: Identify the Psycho-Legal Issue Better: “John Doe, a 17-year old African American male, was referred for an evaluation by his defense counsel, Ms. Linda Hricko, Esq. I was asked to conduct a forensic examination of John addressing his competency to stand trial pursuant to Ohio Revised Code 2945.37(G). A defendant may be determined to be incompetent to stand trial when, “because of the defendant's present mental condition, the defendant is incapable of understanding the nature and objective of the proceedings against the defendant or of assisting in the defendant's defense.” Of particular concern to his attorney is difficulty communicating with John given his limited language skills and poor memory.”

12. Preparation: Qualify the Forensic Examiner Ethics: Services are provided “only in areas of psychology in which (forensic psychologists) have specialized knowledge, skill, experience, and education.” Further, there is a responsibility for “a fundamental and reasonable level of knowledge and professional standards that govern their participation as experts in legal proceedings.” Finally, there is “an obligation to present to the court, regarding the specific matters to which they will testify, the boundaries of their competence, the factual bases (knowledge, skill, experience, training and education) for their qualifications as an expert…” (APA Specialty Guidelines for Forensic Psychologists)

13. Preparation: Qualify the Forensic Examiner Law: The expert offers evidence in scientific matters or areas of specialized knowledge. The expert must have special knowledge, skill, experience, training or education that would assist the Trier of Fact in the resolution of disputed questions of fact. (FRE 702) The expert should be prepared to offer testimony that meets a Daubert Standard. The evidence should be 1) testable, 2) has been tested, 3) using a technique with a known error rate, 4) with accepted standards that have been 5) subjected to peer review and publication. Daubert criteria have been used for psychological testing, SO risk assessment, diagnosis, training defendants to attain competency to stand trial and more.

14. Preparation: Qualify the Forensic Examiner Best Practice Standards: Substantial expertise with a given population, and substantial experience in forensic contexts. Professional Acceptance: Established. Poor: Psychologist examines a teen with a history of ADHD and possibly Bipolar Disorder (Rapid Cycling). However, virtually all of the examiner’s practice has been with adults. Better: Psychologist evaluates the same teen, but has both clinical training in treating ADHD and BPD as well as forensic assessment with adolescents.

15. Preparation: Identify Conflicts of Interest Ethics: “Forensic psychologists avoid providing professional services to parties in a legal proceeding with whom they have personal or professional relationships that are inconsistent with the anticipated relationship.” “The forensic psychologist maintains professional integrity by examining the issue at hand from all reasonable perspectives, actively seeking information that will differentially test plausible rival hypotheses.” (APA Specialty Guidelines for Forensic Psychologists)

16. Preparation: Identify Conflicts of Interest Law: Tell the “truth, the whole truth, and nothing but the truth.” The “whole truth” involves basing opinions on supporting and non supporting data – and being transparent about the process. Best Practice Standards: Identify all sources of bias prior to accepting the forensic assignment. A therapist should not perform a forensic examination on a patient, nor should a forensic psychologist see an examinee for counseling. Court clinic psychologists may align with the prosecution, while private examiners may align with the defense. One guide: given the referral source, what proportion of your examinees do you recommend as IST or NGRI? Professional Acceptance: Established.

17. Preparation: Clarify Roles Ethics: The psychologist should discuss roles and fee structure, prior and current relationships that might impact the decision to contract. The ethics describe an “initial consultation with the legal representative of the party seeking services.” Impartiality is assumed. (APA Specialty Guidelines for Forensic Psychologists) Law: Primary issue is “impartiality” or “assisting the attorney. Impartiality is assumed when appointed by the court, or retained by the defense of prosecution to assess an issue in statute such as CST. The steps are outlined in the code. When retained as the expert for one party, clarification of role becomes crucial for such things as ex parte discussions, to whom the report is directed, and so forth.

18. Preparation: Clarify Roles Best Practice Standards: The forensic examiner should adopt one role – typically impartial examiner – and not deviate from the role. Impartiality is always assumed regardless of the party retaining the examiner. The attorney-forensic examiner role should be in writing. Poor: Therapist is working with a teen with drug problems. Kid gets caught distributing, but has been making progress in therapy. Attorney for parents ask therapist to testify in court regarding the low likelihood that the kid will re-offend since he’s “doing better.” Better: Therapist declines to testify except as a fact witness, and suggests that the attorney get a forensic risk assessment elsewhere.

19. Preparation: Obtain the FMHA Authorization Ethics: A forensic exam is authorized by the “legal representative of the party seeking services.” Further, “in situations where the party may not have the capacity to provide informed consent to services or the evaluation is pursuant to court order, the forensic psychologist provides reasonable notice to the client’s legal representative… If the legal representative objects to the evaluation, the forensic psychologist notifies the court issuing the order…” (APA Specialty Guidelines for Forensic Psychologists) Law: Authorization varies on the nature of the case (criminal or civil) and role of the forensic examiner (appointed by the court, retained as expert for one side).

20. Preparation: Obtain the FMHA Authorization Best Practice Standards: Authority for pretrial forensic examination should lie with the court or defense attorney except in the cases where the examination is used to delay trial, or the defendant is in need of emergency mental health treatment. The ORC typically provides for the defense, prosecution or court to raise pretrial examinations, but places the burden upon the defense to initiate. Professional Acceptance: Established

21. Preparation: Determine the FMHA Model FMHA are written from a psycho-legal perspective. The major model has been developed by Thomas Grisso for evaluating competencies. Morse and Bonnie also have followers. Grisso has 6 characteristics: Functional – actions, knowledge, understanding or beliefs Contextual - environment Causal – how does functional abilities relate to legal issue Interactive – level of ability to meet demands client faced (will face) Judgmental – person/context incongruity sufficient to find incompetent Disposition – consequences of a finding of incompetence

22. Data Collection • Appropriate Examination Conditions • Notification of Purpose • Assessment of Examinee Understanding of Purpose and Limits of Confidentiality • Multiple Sources of Information • Relevance and Reliability of Data Sources • Assess Legally Relevant Behavior

23. Data Collection: Appropriate Exam Conditions Ethics: Not directly addressed Law: Not directly addressed Best Practice Standards: Standards for Educational and Psychological Testing (APA 1985) 15.1 notes that test publishers must specify administration conditions. 15.2 notes need for “reasonable comfort with minimal distractions.” Professional Acceptance: Established

24. Data Collection: Appropriate Exam Conditions Best Practice Standards: Based on test manuals and common sense, forensic interviewing and testing should take place in the following conditions: • Reasonably quiet location • No distractions • Private conditions • Prosecution conditions: Yes! • Defense conditions: You’ve Got to be Kidding!

25. Data Collection: Provide Notification Ethics: There is a difference between notification and informed consent. In either case, “Forensic psychologists have an obligation to ensure that prospective clients are informed of their legal rights with respect to the anticipated forensic service, of the purpose of any evaluation, of the nature of the procedures to be employed, of the intended uses of any product of their services, and of the party who has employed the forensic psychologist” If informed consent is not given, “if the client appears unwilling to proceed after receiving a thorough notification of the purposes, methods, and intended uses of the forensic evaluation, the evaluation should be postponed…to place the client in contact with his/her attorney…”

26. Data Collection: Provide Notification Ethics: Finally, “forensic psychologists inform their clients of the limitations of the confidentiality of their services and their products by providing them with an understandable statement of their rights, privileges, and the limitations of confidentiality. (APA Specialty Guidelines for Forensic Psychologists) Law: Varies by jurisdiction, but see Estelle v. Smith (1981) Professional Acceptance: Established

27. Data Collection: Provide Notification Best Practice Standards: The defense attorney AND the forensic examiner are must provide the defendant with an explanation of the: • Purpose and nature of the examination • Who has requested the examination • Methods used in the examination • Who is paying for the examination • Potential uses of any disclosures made during the examination • Conditions under which the prosecutor will have access to information obtained and resulting reports • Consequences if the defendant refuses to cooperate (Criminal Justice Mental Health Standards, ABA 1989; various APA and AFFCC ethics codes and model standards – see resources later in this presentation)

28. Data Collection: Provide Notification The scope of notification should be clearly stated at the beginning of the report. The examinee should sign a written notification document if developmentally able. It may be wise to have a parent sign as well. Poor: “Statement of non-confidentiality: Prior to the onset of the evaluation, John was informed that due to the court-ordered nature of the evaluation, that confidentiality would be limited. John did not initially understand what the word confidential meant. However, he was asked if he knew what the word secret meant, and he defined it by stating “if someone tells you something, you can’t tell nobody else.” It was explained to him that a report would be written and submitted to the Court. He understood this, and agreed to proceed with the evaluation.”

29. Data Collection: Provide Notification Better: “Notification: John was incarcerated at the Cuyahoga County Juvenile Detention Center on both days of the evaluation. I verbally notified him in simple language that the purpose of the evaluation was to assess his competency to stand trial, and that a report to the Court, the defense and the prosecutor would be prepared based on information and test results provided during the examination. He was told in simple language that participation in the examination was necessary if his attorney, who had requested the examination, was to pursue the issue of his competency to stand trial. John was also told that any information that he provided would not be held in confidence (e.g. “kept a secret”). He was told in simple language that a finding of incompetent to stand trial would likely result in his charges being dropped but could result in his being placed in residential care, and that otherwise he could face a potential prison sentence. He was further told that his attorney or the court would pay for the examination, and that should he decide not to participate, that his attorney would be contacted. When questioned, John indicated that he understood the notification (which required very simple language and explanation), the purpose and possible impact of the examination, and verbally consented to participate with the examination. The identical notification was presented to his mother.”

30. Data Collection: Understanding of Notification Ethics: “In situations where the client or party may not have the capacity to provide informed consent to services or the evaluation is pursuant to court order, the forensic psychologist provides reasonable notice to the clients’ legal representative of the nature of the anticipated forensic services before proceeding. If the clients’ legal representative objects to the evaluation, the forensic psychologist notifies the court issuing the order and responds as directed. (APA Specialty Guidelines for Forensic Psychologists) Law: No case law

31. Data Collection: Understanding of Notification Best Practice Standards: There is general agreement that the following steps should be observed after the examinee is provided notification or a statement of informed consent: • Question the examinee regarding understanding • Ask the examinee to paraphrase the information (not just rote parroting – but “what does that mean” or “how would that work in your case?” • If the examinee has very limited understanding, then the attorney should be notified for court ordered examinations. Professional Acceptance: Established

32. Data Collection: Multiple Source of Information Ethics: Multiple sources of information are needed for the examiner to “corroborate critical data that form the basis for their professional opinions”. Further, the examiner is responsible for “examining the issue at hand from all reasonable perspectives, actively seeking information that will differentially test plausible rival hypotheses.” (APA Specialty Guidelines for Forensic Psychologists) Law: Federal Rules of Evidence for expert testimony would focus on the criteria of “general acceptance in the field” and the criterion of “scientific validity.” The general notion is that independent third party collateral information carries much more weight than friends and family.

33. Data Collection: Multiple Source of Information Best Practice Standards: Collateral records can make or break an examination. Multiple sources of information clinical and historical information should be sought for EACH area examined. The greater the number of records, the better the convergent validity for the psycho-legal issue – even if the issue may not require historical information or testing (e.g. CST and MSO/NGRI). Ideally, the attorney should obtain records at the psychologist’s request. A court order for the evaluation is a huge asset in this regard. Information sources include: • Interviews with collaterals (teachers, PO, psychiatrist, victim, witness…) • Records (school, court, police, fire, employment, medical…) Professional Acceptance: Established

34. Data Collection: Multiple Source of Information Poor: Sources of Information: 1. Clinical interview, competency assessment conducted by… 2. Evaluation team report, Pleasantville Public Schools… 3. Predisposition report, J. Delta… 4. Adolescent mental health assessment, C. Beta… 5. Community probation reports, C. Tango… 6. Treatment summary, M. Delta, M.D., Positive Education… 7. Consultation, D. Bravo, therapist, Bureau of Mental… Better: Contacts • December 10, 20-- 30m John Doe Examinee • December 10, 20-- 30m Sally Doe Mother • December 21, 20-- 15m John Hotel, Happy Children’s Home • December 23, 20-- 2h 30m John Doe Examinee • December 23, 20-- 5m D Bravo, CCBMR-DD • December 26, 20-- 1h 30m John Doe Examinee • December 26, 20-- 15m Sally Doe Mother • December 27, 20-- 20m D Bravo, CCBMR-DD

35. Data Collection: Multiple Source of Information • Data Sources • The following data sources were reviewed in the course of this examination: • Legal • Cuyahoga County Common Pleas Court, Juvenile Division, Face Sheet, John Doe, No date. • Cuyahoga County Court of Common Pleas, Juvenile Court Division, Complaint, Case No. 051---, Count 1, Domestic Violence 2919.25(A), John Doe, 11-10-----. • Cuyahoga County Court of Common Pleas, Juvenile Court Division, Complaint, Case No. 051---, Count 2, Unauthorized Use of Vehicle 2913.03(A), John Doe, 11-11----. • Cuyahoga County Court of Common Pleas, Juvenile Court Division, Complaint, Case No. 051---, Count 3, Disorderly Conduct 2917.11(A), John Doe, 11-11----. • Cuyahoga County Court of Common Pleas, Juvenile Court Division, Complaint, Case No. 051---, Count 4, Criminal Damaging 2909.06(A)(1), John Doe, 11-11----. • Cuyahoga County Court of Common Pleas, Juvenile Court Division, Complaint, Case No. 051---, Count 5, Unruly Child 2151.022(A), John Doe, 11-11----. • Cuyahoga County Court of Common Pleas, Juvenile Court Division, Record Number 34---, Probation Disposition Report by Norma Bravo, John Doe, 12-20----. • Cuyahoga County Juvenile Court, Juvenile Information Management System, Initial Risk Assessment, Case Number DL051---, John Doe, 12-20-----. • Cuyahoga County Court of Common Pleas, Juvenile Court Division, Probation Department Client Data, John Doe, 2-8----. • Cuyahoga County Juvenile Court, Community Probation Report, Record Number 34---, John Doe, 6-8----. • Cuyahoga County Court of Common Pleas, Juvenile Court Division, Motion for Violation of Court Order, Case No. Dl---, John Doe, 8-3----.

36. Data Collection: Multiple Source of Information • Cuyahoga County Court of Common Pleas, Juvenile Court Division, Community Probation Report, Record Number 34---, John Doe, 11-2----. • Cuyahoga County Court of Common Pleas, Juvenile Court Division, Complaint, Case No. 061---, Count 1, Burglary 2911.12(A)(2), John Doe, 8-4----. • Cuyahoga County Court of Common Pleas, Juvenile Court Division, Complaint, Case No. 061---, Count 2, Burglary 2911.12(A)(2), John Doe, 8-4----. • Cuyahoga County Court of Common Pleas, Juvenile Court Division, Complaint, Case No. 061---, Count 3, Burglary 2911.12(A)(2), John Doe, 8-4----. • Cuyahoga County Court of Common Pleas, Juvenile Court Division, Complaint, Case No. 061---, Count 4, Theft 2913.02(A)(2), John Doe, 8-4----. • Cuyahoga County Court of Common Pleas, Juvenile Court Division, Complaint, Case No. 061---, Count 5, Theft 2913.02(A)(2), John Doe, 8-4----. • Cuyahoga County Court of Common Pleas, Juvenile Court Division, Complaint, Case No. 061---, Count 6, Theft 2913.02(A)(2), John Doe, 8-4----. • Cuyahoga County Court of Common Pleas, Juvenile Division, Internal Memo from M Golf to Magistrate Fair regarding John Doe, January 6, ---. • Cuyahoga County Court of Common Pleas, Juvenile Division, Internal Memo from M Golf to Magistrate Fair regarding John Doe, January 31, ----. • Cuyahoga County Court of Common Pleas, Juvenile Court Division, Juvenile Court Diagnostic Clinic, Competency Evaluation of John Doe, Court Psychologist, Ph.D., 9-20----- • Educational • Pleasantville Municipal School District, School Age Evaluation Team Report (ETR), John Doe, 5-27----. • Education School, Individualized Education Program (IEP), John Doe, 10-16----. • Education School, Teen Rating Form (TRF), John Doe as rated by Miss Apple (Classroom Teacher), 10-13----.

37. Data Collection: Multiple Source of Information • Education School, Youth Self Report/11-18 (YSR), John Doe, 10-11----. • Education School, Child Behavior Checklist/6-18 (CBCL/6-18), John Doe as rated by Sally Doe, 9-21----. • Education School, Cross-Informant Comparisons for CBCL/TRF/YSR, 11-10----. • Education School, Junior High Academic Record 2006-2007, John Doe, 10-31----. • Education School, Integrative Attachment Model (IAM) Level System Quarter Averages, John Doe, Quarter 1, ----. • Education School, IEP Progress Report, John Doe, ----. • Education School, Speech-Language Treatment Plan/Progress Summary/Discharge, John Doe, 10-17----. • Education School, NWEA Measures of Academic Progress (MAP) Report, John Doe, 10-16-----. • Education School, Unusual Incident Report, John Doe, 1-6-----. • Education School, Unusual Incident Report, John Doe, 1-12----. • Behavioral Health • Happy Children’s Home, Individualized Service Plan (ISP), John Doe, 8-1-----. • Religious Services, Child/Adolescent Mental Health Assessment, Case #JC---, John Doe, 4-26----. • Education Program, Letter from M Delta M.D., August 15, 2006 re: John Doe XXX diagnosis. • Happy Children’s Home and Family Services, HCH Client Data Collection Form, John Doe, 4-27----. • Happy Children’s Home and Family Services, Individualized Service Plan/Community Respite Care Program and Behavior Intervention Plan, John Doe, 5-2----.

38. Data Collection: Multiple Source of Information • Happy Children’s Home and Family Services, Individualized Service Plan/Community Respite Care Program and Behavior Intervention Plan, John Doe, 7-14---. • Happy Children’s Home and Family Services, Individualized Service Plan/Community Respite Care Program and Behavior Intervention Plan, John Doe, 10-6---. • Happy Children’s Home and Family Services, Case Notes 9-6-06 to 11-27-06, John Doe, 7-14---. • GrowUp, Intake Referral, John Doe, 1-27---. • GrowUp, Client Profile/Intake, John Doe, 1-27---. • GrowUp, Mental Health Assessment, John Doe, 3-26----. • GrowUp, Physical Health Assessment-Self Report, John Doe, 1-27---. • GrowUp, Transfer/Discharge Summary, John Doe, 4-16----. • Tall Oaks Hospital, Physician Attestation, Chart No. 10381, John Doe, 4-12--- • Tall Oaks Hospital, Discharge Summary, Medical Record No. 01-03-81, John Doe, 4-4----. • Tall Oaks Hospital, Psychiatric Assessment, John Doe, 3-30----. • Tall Oaks Hospital, Triage, John Doe, 3-29---. • Tall Oaks Hospital, Psychiatric Progress Note, John Doe, 3-31-2006 to 4-4----. • Tall Oaks Hospital, Initial Treatment Plan, John Doe, 3-30----. • Tall Oaks Hospital, Physical Health Issue/Problem, John Doe, 4-2----. • Tall Oaks Hospital, Interdisciplinary Treatment Plan, John Doe, 3-31----. • Tall Oaks Hospital, Home Going Behavior Contract, John Doe, 4-1----.

39. Data Collection: Multiple Source of Information Question: What difference did the collateral information make in the case? Answer: • History of PDD and MR confirmed independently and historically, effecting disposition planning • Involved observations of the parent (not interviewed by other examiner) • Clearly noted the child had attempted suicide, refuting a statement in the other examiner’s report • Clearly noted extensive involvement of various treating agencies and professionals to assist the child not noted in the other’s report Result: Judge found the defendant IST

40. Data Collection: Reliability of Information Ethics: Examiners should use “current knowledge of scientific, professional and legal developments” in selecting collateral data, tests and procedures for an examination. (APA Specialty Guidelines for Forensic Psychologists) Law: FRE 702 and the Daubert standard emphasize that evidence must be relevant and reliable. Griggs v. Duke Power Company (1971) held that psychological tests have to be valid and demonstrate a reasonable measure of performance for the purpose for which it is being used. Thus – the court has held that the Child Behavior Checklist was not admissible for the evaluation of mentally retarded clients because it had not been normed on that population.

41. Data Collection: Reliability of Information Best Practice Standards: Only reliable and valid tests should be used in forensic settings in a manner that relates to the psycho-legal issue. It is desirable to use nationally accepted protocols for examination of certain issues, such as CST and SO. It is always appropriate to go beyond the protocol in gathering data, but the protocol permits the Trier of Fact to anticipate a consistent set of information that permits judging a particular person, while comparing that person to others seen in court for similar issues. Professional Acceptance: Established for testing, emerging for interview practices

42. Data Collection: Reliability of Information Poor: Information was obtained from: • Buss Durkee Hostility Inventory • Rape Cognition Scale • Child Sexual Abuse Cognition Scale • Empathy Scale • ERASOR (from a Local SO Report) Better: Information was obtained from • MMPI-A • Multiphasic Sex Inventory-II • Psychosexual Life History • ERASOR-II • JSOAP-II

43. Data Collection: Relevant Behavior Assessment Ethics: A forensic assessment must obtain information that clearly describes the functional capacities relevant to the forensic issue(s), and should not contain information that is not relevant to the psycho-legal issue. Behavior assessed should be adequate to “examine the issue at hand from all reasonable perspectives, actively seeking information that will differentially test plausible rival hypotheses.” (APA Specialty Guidelines for Forensic Psychologists) Law: The law specifies the type of behavior to be assessed, depending on the nature of the examination. Example: The focus of the evaluation under the Ohio insanity standard is “whether the defendant, at the time of the offense charged, did not know, as a result of a severe mental disease or defect, the wrongfulness of the defendant’s acts charged.”

44. Data Collection: Relevant Behavior Assessment Best Practice Standard: The use of forensic protocols is advisable, in addition to the examiner’s forensic/clinical methods that go beyond protocols. The behavior assessed is defined by the referral question. Thus, one should not examine a client for “whatever could be wrong” in an effort to assist the referring attorney, but stick to the referral issue. Behavior should be defined in functional terms. Professional Acceptance: Established

45. Data Collection: Relevant Behavior Assessment Poor: The defendant presents as depressed (DSM-IV 296.33) and is likely to deteriorate during the trial process. In addition, he has ADHD (DSM-IV 314.01 ). Better: The defendant is likely to have difficulties communicating with his attorney for several reasons. He is highly impulsive, with a very brief (10 seconds) attention span, and psychomotor agitation. His ability to follow court proceedings appears limited. He frequently interrupts conversations, often with inappropriate comments. He is unable to sit still beyond a few seconds. In addition, he is distracted by his frequent thoughts about suicide (“dozens of times every day”). The defendant has difficulty remaining awake because he reported sleeping only a “few hours” every night…..

46. Data Collection: Relevant Behavior Assessment Many forensic examiners include a diagnosis in their report, or focus on arriving at a multi-axial diagnostic opinion. However, diagnosis is seldom important, because a forensic examination focuses on functional behavior. Further, the use of the DSM-IV-TR in forensic settings is not advised: “Use of the DSM-IV in Forensic Settings: When the DSM-IV categories, criteria, and textual descriptions are employed for forensic purposes, there are significant risks that diagnostic information will be misused or misunderstood. These dangers arise because of the imperfect fit between the questions of ultimate concern to the law and the information contained in a clinical diagnosis. In most situations, the clinical diagnosis of a DSM-IV mental disorder is not sufficient to…

47. Data Collection: Relevant Behavior Assessment …establish the existence for legal purposes of a ‘mental disorder.’ ‘mental disability,’ ‘mental disease,’ or ‘mental defect.” In determining whether an individual meets a specific legal standard (e.g. for competence, criminal responsibility, or disability), additional information is usually required beyond that contained in the DSM-IV diagnosis. This might include information about the individual’s functional impairments and how these impairments affect the particular abilities in question. It is precisely because impairments, abilities, and disabilities vary widely within each diagnostic category that assignment of a particular diagnosis does not imply a specific level of impairment or disability. …The use of DSM-IV in forensic settings should be informed by an awareness of the risks and limitations discussed above…” (Introduction to the DSM-IV-TR)

48. Data Interpretation • Response Style • Idiographic Evidence and Clinical Functional Abilities • Nomothetic Evidence and Clinical Functional Abilities • Scientific Evidence and Clinical Functional Abilities • The Ultimate Question

49. Data Interpretation: Response Style Ethics: The examiner seeks information “that will differentially test plausible rival hypotheses.” (APA Specialty Guidelines for Forensic Psychologists) Law: FRE 703 Facts or supporting data need not be independently admissible if they are of a type “reasonably relied on by experts…in forming opinions of inferences upon the subject.” Best Practice Standards: Use of third-party information to verify self-reports is well accepted. “One of the most useful means of detecting malingering is third-party information. (It) is probably the most accurate means of detecting fabrication and may be the only viable one with clients who sabotage interview and testing efforts.” (Melton et al, 1997) Professional Acceptance: Established

50. Data Interpretation: Response Style Response style is often categorized into four styles: • Reliable and honest (genuine effort to be accurate) • Malingering (genuine effort to fabricate or exaggerate) • Defensive (conscious minimization or denial of symptoms) • Uncooperative (minimal responses, outright refusal to participate) Assessment of response style involves determining if an examinee is presenting both negative and positive information, corroboration with third party collaterals, and possibly testing (TOMM, VIP, SIRS etc.). It is very difficult to assess malingering in special needs populations with testing.