Civil Forensic Evaluation in Psychological Injury and Law: Legal, Professional, and Ethical Considerations

Abstract

Psychologists who work as therapists or administrators, or who engage in forensic practice in criminal justice settings, find it daunting to transition into practice in civil cases involving personal injury, namely psychological injury from the psychological perspective. In civil cases, psychological injury arises from allegedly deliberate or negligent acts of the defendant(s) that the plaintiff contends caused psychological conditions to appear. These alleged acts are disputed in courts and other tribunals. Conditions considered in psychological injury cases include posttraumatic stress disorder, depression, chronic pain conditions, and sequelae of traumatic brain injury. This article outlines a detailed case sequence from referral through the end of expert testimony to guide the practitioner to work effectively in this field of practice. It addresses the rules and regulations that govern admissibility of expert evidence in court. The article provides ethical and professional guidance throughout, including best practices in assessment and testing, and emphasizes evidence-based forensic practice.

Remote Forensic Psychological Assessment in Civil Cases: Considerations for Experts Assessing Harms from Early Life Abuse

“…The literature on the role of various forms of empathy towards evaluees by forensic mental health professionals has wavered between explicit detachment as ethically preferable (Shuman, 1993 ) and moderate and nuanced empathy as the favored path (Brodsky & Wilson, 2013 ; S. Brodsky, personal communication, December 16, 2020). Although it is still considered important not to mislead the plaintiff into thinking that the forensic evaluator is working in a therapeutic role (Foote et al, 2020 ; Greenburg & Shuman, 1996 ), the capacity to express accurate empathy is held to be essential to develop adequate rapport required to conduct a reliable assessment (Dale & Smith, 2020 ). Rapport is deemed to be particularly critical and facilitative when evaluating plaintiffs alleging childhood abuse due to aforementioned issues with distrust, as well as the interview demands (Brand et al, 2017b ; Mulay et al, 2018 ).…”

“…Both forms of assessments usually involve extensive file reviews that are unaffected by remote technology. File information often includes academic, medical, and financial records, psychological reports, treatment records, and work performance reviews (Foote et al, 2020 ). These records help corroborate information obtained from the interview about a plaintiff’s pre-morbid functioning, preexisting conditions, diagnoses, the course of symptoms over time, and treatment efforts.…”

“…In keeping with a multi-method approach, psychologists are uniquely positioned to augment their interview findings with data from psychometric tests. Although no one psychological measure or scale should individually inform the results of an assessment (Foote et al, 2020 ), supplementing clinical interview with psychological testing bestows benefits due to many tests’ standardized methodology, normative data, and available information about the reliability and validity of the instrument (Wygant & Lareau, 2015 ). For plaintiffs who have suffered from childhood abuse, psychological testing has the potential to provide them with some degree of privacy and dignity by offering item choices that may help them to identify or describe symptoms that they might not have the language to formulate.…”

“…Due to the scope of RFPA-CA and other types of forensic referrals, these evaluations often require a great deal of preparation and multiple days of assessment (Foote et al, 2020 ). For these reasons, assessments are sometimes scheduled months in advance.…”

“…Forensic psychological assessments, which provide relevant clinical and scientific data to a legal decision-maker (Heilbrun et al, 2003 ) differ from clinical service delivery not only in purpose, but also in terms of the scrutiny to which such assessments are subjected. Evaluators are expected to conduct professional work at the highest standards and can be questioned about their training, qualifications, methods, and the adequacy, reliability, and validity of the information upon which their opinions are based (Foote et al, 2020 ). The case law is currently limited with respect to the admissibility of remote forensic psychological assessment (RFPA) in the courts.…”