forensic neuropsychology
DESCRIPTION
Forensic Neuropsychology. Scope and Limits of Neuropsychological Testimony June 2, 2014. Class Topics. Description of criminal and civil process Professional and ethical issues for neuro-psychologists and other mental health experts Issues discussions: - PowerPoint PPT PresentationTRANSCRIPT
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: Is neuropsychology based on sufficiently
sound science to be useful in court? What methods are appropriate to meet
scientific evidence standards? What can (and can’t) we testify to?
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 If you’re an expert
Normal caveats regarding confidentiality do not normally apply; has implications for outcome of evaluation
If you’re a healthcare provider When defendant raises mental issue, generally
forfeits right to doctor-patient privilege, but this is nuanced
Privilege generally applies to the extent to which the session was “intended” to be confidential
What patients should 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 make a clear statement of loyalties and obligations
Must specify: who has asked you to perform evaluation purpose of evaluation who will see report potential future activities (e.g., deposition,
trial testimony) what is expected of examinee
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, though I attempt to get it
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)
Consider whether input is “probative” vs. “prejudicial” (Rule 104b FRE)
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 SKEPTIC PRESENTATION
Chris Sege
Admissibility challenges Fixed v. Flexible Battery issue
(Baxter v. Temple, 2005) Causation testimony Application of symptom validity
science Unqualified expert s
FIXED/FLEXIBLE BATTERY DEBATE PRESENTATION
Amanda Garcia
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 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
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
Larrabee et al., 2008 Compared HRB subtests (Category,
TPT, FT, Seashore Rhythm, Speech Sounds) to other variables available in the Halstead-Russell Neuropsychological Evaluation System
SVT-screened (N=101 brain injured, 95 medical controls)
Two separate logistic regressions to predict group
AUC:
86% for AFB
83% for HRB
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.
CAUSATION TESTIMONY PRESENTATION
Jacob Jones
Current State Most courts conduct fact-based
inquiry before accepting opinions regarding physical cause
Courts more sympathetic on causation, particularly for MVA cases
Trial judges generally given “gatekeeper” function
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):
Initial trial had led to $1.2M verdict in favor of Deserio Defendants appealed, contending the the trial judge erred
in allowing a CHP to testify that DeSerio had suffered organic brain damage as a result of the accident (cause)
4th DCA determined that you don’t to be a mdeical doctor to testify to the existence of brain damage, and that medical testimony is not always necessary to show causation
Wording of the ruling suggests that determination must occure case-by-case and must depend on the nature and extent of the psychologist’s knowledge.
Such determinations may affect the WEIGHT give to such testimony, not sheer admissibility
Cont’d School Board of Broward County v.
Cruz Receded from rulings prohibiting
psychologists from testifying as to cause
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”?
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 “Trilogy”: Daubert v. Merrill Dow, 1992; General Electric v. Joiner (1997); Kunho Tire Co. v. Carmichael (1999)
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
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 clairvoyant! extent of brain damage prognosis/course – example line of questioning
Dealing with LimitationsDealing with Limitations
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
NEUROPSYCHOLOGICAL DIAGNOSTICS
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
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
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