Forensic Forensic NeuropsychologyNeuropsychology

Scope and Limits of Scope and Limits of Neuropsychological Neuropsychological

TestimonyTestimonyJune 2, 2014June 2, 2014

Class Topics Class Topics Description of criminal and civil process Professional and ethical issues for

neuro-psychologists and other mental health experts

Issues discussions: Should mental health practitioners be

experts? Is our science sufficiently advanced? Ethical scenarios and solutions

Criminal ProceedingsCriminal Proceedings Detention for probable cause (40-50% certainty) Booking at police station Initial hearing 48-72 hrs Defense motions and discovery Prima Facie showing – “on first look”, or “on its face”;

evidence presented to Grand Jury that leads to indictment Arraignment – notified of charges, enters plea, bail set Trial Disposition Appeal Collateral Attack – challenging ruling by filing another case Dispositional Review Post-sentence Treatment Hearings

Civil ProceedingsCivil Proceedings Complaint Pretrial Motions Discovery

pretrial depositions interrogatories requests to produce

Settlement or Trial civil jury returns majority verdict federal court: unanimous unless stipulated

beforehand

Common Law and Statutory Common Law and Statutory Duties of Evaluator I: Duties of Evaluator I:

ConfidentialityConfidentiality Normal caveats regarding confidentiality

do not normally apply; has implications for outcome of evaluation

When defendant raises mental issue, generally forfeits right to doctor-patient privilege

Confidentiality and prior treaters What patients must be told (see next

slide) Who is the client?

Common Law and Statutory Common Law and Statutory Duties II: Clarifying Duties II: Clarifying

RelationshipsRelationships

Must clarify for all one’s various loyalties and obligations (e.g., philosophical opposition to death penalty)

Must specify: who has asked you to perform evaluation purpose of evaluation who will see report potential future activities (e.g., deposition,

trial testimony) Should assess patient’s understanding of these

issues- in their own words

Common Law and Statutory Common Law and Statutory Duties III: Tarasoff DutyDuties III: Tarasoff Duty

Tarasoff case review Duty to warn in the event of dangerousness General Guidelines:

person in danger must be named or evident (doesn’t apply to overly general threats)

notification of police, not necessarily direct warning of person, is permissible

Three varieties: mandatory, permissible, no law Question: Do you warn in a non-Tarasoff state? Variations: warning re HIV/AIDS, genetically

transmissible disease?

Common Law and Statutory Common Law and Statutory Duties IV: Freedom of Choice to Duties IV: Freedom of Choice to

ParticipateParticipate Normally a part of clinical service delivery,

informed consent is (technically) minimally relevant to forensic evaluations

Consent to participate is patient’s choice, but (s)he should be made aware of consequences of their choice; there may be law-sanctioned consequences

If patient declines: outline possible sanctions talk to attorney advise whether a report will be sent nonetheless don’t use scare tactics (“you’ll fry for this!”)

Issue: Is patient “compelled” to participate?

Common Law and Common Law and Statutory Duties V: Statutory Duties V: Invasion of PrivacyInvasion of Privacy

Avoid undue invasion of privacy, whatever the context

Avoid two types of intrusions: avoid eliciting damaging but irrelevant info

(e.g., eliciting info about sexual behavior that is not relevant to the legal issue)

avoid addressing other forensic issues not raised in the referral question (e.g., in determining circumstances surrounding event, uncover information about past unsolved crime)

Common Law and Statutory Duties Common Law and Statutory Duties VI: Records and the Public DomainVI: Records and the Public Domain

Exchange/release of raw data to adversary “Test data” v. “Test materials”

Test data (9.04) is, “raw and scaled scores, client/patient responses to test questions or stimuli, and psychologists’ notes and recordings conerning client/patient statements and behavior during an examination. Those portions of test materials that include client/patient responses are included in the definition of “test data”. Persuant to a patient/client release, psychologists provide test data to the client/patient or other persons identified in the release. Psychologists may refrain from releasing test data to protect a client/patient or others from substantial harm or misuse or misrepresentation of the data or the test, recognizing that in many instances release of confidential information under these circumstances is regulated by law.

Test materials (9.11) “refers to manuals, instruments, protocols, and test questions or stimuli and does not include test data as defined in Standard 9.04. Psychologists make reasonable efforts to maintain the integrity and security of test materials and other assessment techniques consistent with law and contractual obligations, and in a manner that permits adherence to this Ethics Code.”

Specialty Guidelines for Specialty Guidelines for Forensic Psychologists (2008)Forensic Psychologists (2008)

Responsibilities Competence Diligence Relationships Fees Notification, Assent, Consent, and Informed

Consent Conflicts in Practice Privacy, Confidentiality and Privilege Methods and Procedures Assessment Professional and Other Public Communications

Specialty Guidelines Specialty Guidelines (cont’d)(cont’d)

Public & Professional Communication restriction of psychological data to colleagues treat colleagues with respect avoid making statements about legal

proceedings present findings fairly; avoid distortion actively disclose all sources of information observations, opinions, conclusions must be

distinguished from legal facts, opinions, and conclusions

Notes on APA Ethics CodeNotes on APA Ethics Code Principles (aspirational goals) vs.

standards (enforceable rules of conduct) Validity and normative concerns Documentation should be appropriate

for the assessment task (higher level of specificity typically required in forensic settings?)

Avoid harm: this is complex, since any forensic opinion will involve “harm” to one party; therefore, avoid unnecessary harm

Criticisms of Forensic Criticisms of Forensic Psychology (Morse, 1982)Psychology (Morse, 1982)

Mental health professionals have less to contribute than is commonly supposed

Most lay people are quite competent to make judgments regarding mental disorder

All mental health law cases involve primarily moral and social issues, and only secondarily scientific ones

Overreliance on experts promotes the idea that such moral and social issues are, in fact, scientific ones

Professionals should recognize this difference and should refrain from drawing social and moral conclusions about which they are not expert

Method Skeptic Position Method Skeptic Position (Faust, Ziskin, Hiers, et (Faust, Ziskin, Hiers, et

al.)al.) Neuropsychological evidence is usually of

negligible value in resolving legal issues Neuropsychology doesn’t map onto the

forensic context. Three examples: brain damage doesn’t directly relate to legal

issues such as competency or insanity clouded objectivity in the adversarial context scientific knowledge in neuropsychology

relates minimally to questions of legal interest

Method Skeptics Method Skeptics (cont’d)(cont’d)

Subtle-Obvious problem: most tests validated on “obvious” damage; how will they perform under subtle conditions?

Ecological validity: most NP tests have unproven ecological validity in forensic context

Base-rate problem: validity, reliability, predictive value, and base rates. Some of these points are well-taken, and are reviewed on the next slides:

Method Skeptics –Common Interpretive Errors

Hindsight bias – diagnose that which is already diagnosed

Confirmatory bias Overreliance on salient data – use of

“pet” tests as pathognomic Underutilization of base rates Failure to take covariation into

account – administering correlated tests as confirmatory evidence

Disease Present

Disease Absent

Sign Absent Sign Present

False Negative True Positive

True Negative False Positive

Signal Detection Framework for Signal Detection Framework for Diagnostic Decision-MakingDiagnostic Decision-Making

Operating Characteristics of Operating Characteristics of TestsTests

Sensitivity: If a person truly has a disorder, how likely is the test to pick it up?

Specificity: If a person truly does not have the disorder, how likely is it that the test will be normal?

Positive Predictive Power: Knowing that there is a positive sign, how likely is the person to have the disorder?

Negative Predictive Power: Knowing that there is a normal test result, how likely is the person to be healthy?

Sign Absent

Sign Present

Disease Absent

276 10 286

Disease Present

17 19 36

293 29 322

Operating Characteristics of Benton TFR at Prevalence = .11

Prevalence = 36/322 = .11Sensitivity = 19/36 = .53Specificity = 276/286 = .965Positive Predictive Power = 19/29 = .66Negative Predictive Power = 276/293 = .94Overall Predictive Power = (19+276)/322 = .92

Sign Absent

Sign Present

Disease Absent

305 11 316

Disease Present

3 3 6

308 14 322

Operating Characteristics of Benton TFR at Prevalence = .02

Prevalence = 6/322 = .02Sensitivity = 3/6 = .50Specificity = 305/316 = .965Positive Predictive Power = 3/14 = .21Negative Predictive Power = 305/308 = .99Overall Predictive Power = (3+305)/322 = .92

mTBI No mTBI TOTALS

Positive (Abnormal

)19 10 29

Negative (Normal) 17 276 293

Totals 36 286 322

a b

dc

Sensitivity = a/(a+c) = 19/36 = .53Specificity = d/(b+d) = 276/286 = .97Positive Predictive Power = a/(a+b) = 19/29 = .67 (also known as PTL+)Negative Predictive Power = d/(c+d) = 276/293 = .94 Prevalence = (a+c)/(a+b+c+d) = 36/322 = .11 (pretest probability of d/o)Pre-test Odds = PTP/(1-PTP) = .11/.89 = .12 (.12:1)Post-Test Odds of mTBI given Positive Result = .67/(1-.67) = 2.03 (>10 is strong)Post-Test Odds of mTBI given Negative Result = 1-NPP = .06Likelihood Ratio of Positive Test = [a/(a+c)]/[b/(b+d)] = Sens/(1-Spec) = .5378/.0346 = 15.10 (15.10:1)Likelihood Ratio of Negative Test = [c/(a+c)]/d/(b+d)] = (1-Sens)/Spec = .47/.97 = .48 (.48:1)Diagnostic Odds Ratio = LR+/LR- = 17.67/.48 = 36.81

Method Skeptics (cont’d)Method Skeptics (cont’d)

Lack of standardized practices: variations in procedure make it difficult to provide a standard description of neuropsychology

Assessment of credibility: individuals can fake performance on many measures

Difficulty determining prior functioning

Information-processing limitations False markers of accuracy

Limitations of Neuropsychological Limitations of Neuropsychological Testimony in FL – mostly of historic Testimony in FL – mostly of historic

valuevalue

Executive Car & Truck Leasing v. DeSerio (1985): Limitation of psychological testimony by denying

psychologists permission to testify as to physical causation of brain injury

Instances where causation does not require a “medical opinion”

Broward County School Board v. Luis John Cruz (2000) – 4th DCA:

Due to substantial evolution of psychology since the case of Executive, court recedes from prior ruling

2 judges concur specially, basing their opinion on the idea that the original decision was wrong in the first place

Trilogy + FRE =Trilogy + FRE = Knowledge Test: expert has “scientific,

technical or other specialized knowledge” (what do you know?)

Helpfulness Test: must assist trier of fact (is what you know useful?)

Qualifications Test: expert must have “specialized knowledge, skill, training, or education” (how did you come to know what you know?)

Daubert RulingDaubert Ruling District court threw out animal testimony

because it was “generally accepted” that only human studies would do

Would not admit a re-evaluation of existing data conducted by a plaintiff witness because it had not been “peer reviewed” but prepared only for trial

9th DCA affirmed; then went to USSC

Daubert Issues Seen as vehicle by which bogus

scientific testimony (so-called “junk science”) could be addressed

22 amicus briefs submitted (8 for petitioner; 14 for respondent)

One of the key questions is, “is this scientific”?, or, “what constitutes scientific evidence”?

Frye v. Daubert comparedFrye v. Daubert compared

Frye Scientific principle or

discovery must be “sufficiently established to have gained general acceptance in the particular field in which it belongs”

Pretrial ruling No real systematic test,

and no direct test of whether “general acceptance” is correct

Daubert Reasoning or methodology

underlying testimony must be “scientifically valid”

Preliminary ruling based on FRE

4 indicia (some say 6) ‘widespread acceptance’ Peer review Publication Known/potential rates of

error Testing Existence of standards

Fixed v. Flexible Batteries General acceptance – what percentage of

practitioners say they use flexible batteries? Peer review Publication Known (or potentially known) rates of error Existence of standards Testing

Chapple v. Ganger (1994) Fixed v. flexible battery pitted against one another Court accepted fixed battery and only portions of

flexible battery (both were admitted, but greater weight was given to fixed)

Court held that entire reasoning process, not just part of the process upon which the neuropsychologist derives a conclusion, must be scientific (Question: how does the reasoning process for fixed and flexible batteries differ?)

Nothing beats GOOD PRACTICE

Should the fixed vs. flexible battery issue worry you?

Likely not; judges are not journal editors Key issues

Generally accepted? Known, or potentially known, error rate? Peer review? Existence of standards?

More about error rate on the next slide Everything I say has an exception! So be

prepared! Key issue: Know your interpretive strategy and

its strengths and weaknesses and be able to defend it strongly

HRNB v. Flexible on error rate Main HRNB data: GNDS Scale

(Reitan & Wolfson) Only works for subjects matching

the BD and demographic characteristics of Reitan & Wolfson

Available data do not demonstrate a reliable superiority of HRNB over flexible battery

HRNB IndicesHRNB Indices Average Impairment Rating (AIR) General Neuropsychological Deficit

Scale (GNDS) Summarizes 42 variables Establishment of cutoffs for “brain damage” Considered by many the “gold standard” in

fixed battery approach for diagnostic accuracy and efficiency

Rohling Interpretive Method Rohling Interpretive Method (RIM)(RIM)

Converting all scores to age-adjusted T-scores as a common metric

Calculating two test battery means as a measure of global functioning (all items, composite items)

Calculating the percentage of tests that fall in the impaired range

Calculating pre-morbid intelligence using regression methods (OPIE)

Conducting one-sample t-tests on each test battery mean to form estimates of pre-morbid general ability

Rohling et al (2003)Rohling et al (2003) Applied RIM to HRNB data (114 patients, 73

‘pseudoneurological’ controls) that had been used in prior cross-validation research on the GNDS

Found that OTBM, ITBM, %TI had similar sensitivity, specificity, PPV and NPV as traditional HRNB indices

Provides a benchmark against which the results of a study with a flexible battery could be measured

Rohling, M.L., Williamson, D.J., Miller, L.S., & Adams, R.L. (2003). Using the Halstead-Reitan Battery to diagnose brain damage: A comparison of the predictive power of traditional techniques to Rohling’s Interpretive Method. The Clinical Neuropsychologist, 17, 531-543.

Criticisms of RIM Comparing performance in specific cognitive

areas to EPGA (estimated premorbid general ability)

Problems in comparing composite scores to a normative mean of 50 (SD of composite doesn’t often equal 10)

Problems in covariance in comparing values of cognitive ability areas within the RIM

Need large-scale co-normed batteries to address these issues

Palmer, B.W., Appelbaum, M.I. & Heaton, R.K. (2004). Rohling’s Interpretive Method and inherent limitations on the flexibility of “flexible batteries”. Neuropsychology Review, 14, 171-176.

Calculating Premorbid AbilityCalculating Premorbid Ability Demographic Regression Equations

Barona Combined WAIS subtest-Demographic Regression Equations

Oklahoma Premorbid IQ Estimate (OPIE) Reading Tests “Hold” Tests Lezak’s “best performance” methods – don’t use

OPIE-3 Combines current performance on WAIS-

III subtests with demographic variables (age, education, gender, region, ethnicity)

Five variations OPIE-3(4ST): V, I, MR, PC OPIE-3(2ST): V, MR OPIE-3V: V, for use with lateralized NV-deficit

patients OPIE-3P (MR, PC) OPIE-3MR: MR, for use with

lateralized V-deficit patients

Limitations of Limitations of Neuropsychological TestimonyNeuropsychological Testimony

Testifying to the ‘ultimate legal issue’ – you are not an attorney or a judge! competency mental state at offense damages

Testifying to the physical aspects of brain damage – you are not a physician! extent of brain damage prognosis/course

Relevant Appellate Relevant Appellate DecisionsDecisions

GIW Southern Valve vs. Smith defendant (GIW) appealed $1.35M verdict court ruled that psychologist could not testify as to

“prognosis of future physiological effects of accident on plaintiff’s brain” - this is medical

distinction between present and future condition Executive Car & Truck Leasing vs. Deserio

appeal based on testimony as to physical cause of brain damage

after Jenkins, idea is that lack of medical degree can affect weight of testimony

Issues Regarding Issues Regarding LimitationsLimitations

Need to be cognizant of both sides of brain-behavior equation

Need to recognize lawyer’s attempts to get you to testify medically

Need to recognize lawyer’s attempts to get you to recognize (defer to) “authoritative” sources

Issue of “instant” causation; emphasize behavioral, rather than physiological aspects of damage (but is this outdated re: 4th DCA?)

Be aware of physical findings in case

Guarding Against False Guarding Against False Positives: Consistency AnalysisPositives: Consistency Analysis Consistency of results

between/within domains Consistency with known syndromes

example: “hemi-anomia” Consistency with injury severity Consistency with other aspects of

behavior e.g. memory abilities during vs. apart

from formal testing

Other Professional Practice Other Professional Practice IssuesIssues

Fees, retainers, and payment agreements “contingency fees” vs. letters of protection differing fee structure for forensic vs. nonforensic cases?

Allowing forensic work to change your “standard of practice”

Observers, video/audiotape, or court reporters test selection Use of technicians (Division 40 Task Force, new CPT

codes) Records release

Relevant principles from Ethics Code approach to problem