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Ethical Decision Making in Clinical Neuropsychology by sC9p113

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									Ethical Decision Making in
Clinical Neuropsychology
      Shane S. Bush, Ph.D.
 Long Island Neuropsychology, P.C.
       Lake Ronkonkoma, NY



                                     1
“Principles have no real force except when
  one is well-fed.”

               Mark Twain (1835 - 1910)




     “Grub first, then ethics.”

          Bertolt Brecht   (1898 - 1956)
                           (German Playwright)
                                                 2
Disclosure




             3
          Learning Objectives
1.   Be able to describe ethical challenges
     encountered in clinical neuropsychology.
2.   Be able to identify ethical issues in
     clinical vignettes.
3.   Become familiar with an ethical decision-
     making model and be able to apply the
     model in a manner consistent with
     positive ethics.
                                                 4
   Common Ethical Challenges in
          Psychology
Pope and Vetter (1992) - random sample of
   APA members regarding major ethical
   dilemmas encountered in daily work:
1. confidentiality
2. blurred, dual, or conflictual relationships
3. payment issues
4. forensic issues
5. assessment issues
6. competence
                                                 5
    Common Ethical Challenges in
        Neuropsychology
Brittain, Frances, & Barth (1995) collected
  ethically challenging vignettes from ABCN
  diplomates. Most dilemmas involved:
► Boundaries of  competence
► Appropriate use of assessments
► Interpretation of assessment results


                                              6
      Common Ethical Challenges in
       Neuropsychology continued
Primary ethical challenges identified by a panel of
  neuropsychologists with considerable experience
  addressing ethical issues.
► Professional  competence
► Increasing involvement of neuropsychologists in
  forensic activities
► Apparent misconduct of colleagues


(Bush, Grote, Johnson-Greene, & Macartney-Filgate, in press, TCN)
                                                                    7
Common Sources of Ethical Conflict
   in Clinical Neuropsychology
  (Bush, Grote, Johnson-Greene, & Macartney-Filgate, in
                         press, TCN)


Based on my professional experiences and
familiarity with the literature, I provided a list
of 12 common sources of ethical conflict in
clinical neuropsychology.

                                                          8
Common Ethical Challenges cont
1.   Professional competence
2.   Roles & relationships – dual/multiple
3.   Test security / release of raw test data
4.   3rd party observers
5.   Confidentiality
6.   Assessment


                                                9
Common Ethical Challenges cont-
7.    Conflicts between ethics & laws
8.    False or deceptive statements
9.    Objectivity
10.   Cooperation with other professionals
11.   Informed consent / 3rd party requests
      for services
12.   Record-keeping & fees
Consider practice context/jurisdiction
                                              10
1. Professional Competence

 ► Transitioning from   clinical to forensic
  practice
 ► Establishing and  maintaining competence
  - current scientific and professional
  literature, supervision/consultation
 ► Peer   review
 ► Recognize   boundaries of competence
                                               11
2. Roles & Relationships – dual/
   multiple
► Avoid  conflicts of interests, such as serving as the
  treating doctor and forensic expert
  Performing a forensic evaluation of a patient with
  whom one has a current or preexisting therapeutic
  relationship would constitute a dual role and is
  considered unethical (Barsky & Gould, 2002; Lees-
  Haley & Cohen, 1999; Melton et al., 1997).
► Clarifyexpectations with the patient/retaining
  party at the outset
                                                          12
3. Test Security/Release of Raw
   Test Data
► Balancing discovery  requirements with
 ethical and legal obligations to maintain test
 security
► Stepsshould be taken to maximize test
 security while complying with discovery
 requirements.
   See NAN position papers (nanonline.org)

                                              13
4. 3rd Party Observers
► Threatens validity   of test data – affects
 performance
► Threatens test   security
► WAIS-IIIManual: “As a rule, no one other
 than you & the examinee should be in the
 room during the testing” (p. 29).
► An   examinee‟s right in some jurisdictions
                                                14
5. Confidentiality

 ► Expectations  & limits must be clarified
  with all parties at the outset.




                                              15
6. Assessment
 ► Methods  must be sufficient to
   substantiate conclusions/opinions
 ► Conclusions  must be based upon
   established scientific evidence
                        of interpretations/
 ► Significant limitations
   opinions must be described (in detail)
    Explain what is meant by “interpreted with
     caution.”
                                                  16
7. Conflicts Between Ethics & Laws
 ► E.g.,   3rd party observers, raw test data
 ► Make  known commitment to ethics,
   attempt to resolve/compromise, follow
   the law
 ► Caution  is recommended in seeking legal
   advice from attorneys who have a stake
   in the case

                                                17
8. False or Deceptive Statements
► Avoidmisleading conclusions and reporting
 of credentials (e.g., “board eligible”)
► Havingan inaccurate belief is not
 necessarily unethical
► Forensic contexts allow for unsupportable
 beliefs to be challenged and negated;
 however, knowingly making statements that
 are without support may warrant formal
 review
                                              18
9. Objectivity

► “Tosuggest that remaining unbiased amidst
 various powerful forces can be difficult is an
 understatement.” (Sweet, Grote, & van Gorp, 2002)

► “Regardless of amount of prior forensic
 experience, debiasing strategies…can also
 be useful.” (Sweet, Grote, & van Gorp, 2002)
► Base   rates
                                                 19
Objectivity continued
Proactive Self-Examination
► Passive reliance on the belief that one is
  “ethical” and doing quality work is not
  sufficient to avoid ethical misconduct.
  Professionals must be assertive in seeking
  knowledge, skills, and feedback related to
  ethical forensic practice
► Seek feedback from colleagues doing work
 different from yours (e.g., plaintiff v.
 defense)
                                               20
10. Cooperation with Other
    Professionals
► “Respect  the rights of others to hold values,
  attitudes, and opinions that differ from their
  own.” (APA, 1992, ES 1.09, Respecting Others)
► A psychologist acting as an expert is not
  entitled to decide unilaterally whether a
  particular licensed clinical psychologist is
  competent to review test materials and
  results (Sweet, 1990)

                                               21
  Cooperation with Other Professionals
  continued
Addressing A Colleague‟s Apparent Ethical
  Misconduct
► Exercise  caution to ensure that perceptions of
  incompetence or nonobjectivity are not overly
  reflective of professional or ideological differences.
           ethical complaints during a trial could
► Initiating
  represent or appear to represent opportunism and
  could produce unfair advantage

                                                       22
Cooperation with Other Professionals
continued
Addressing A Colleague‟s Apparent Ethical
Misconduct continued
   “If ethical concerns that arise within a
    forensic context remain salient after the
    case has concluded, then it is appropriate
    to consider whether any action is
    necessary.” (Sweet, 2005)



                                                 23
11. Informed Consent / 3rd party
    Requests for Services
►Clarify at the outset of the service the
  nature of the relationship, including:
   role
   identification of client
   anticipated uses of services provided
   limits to confidentiality
   payor

                                            24
Informed Consent / 3rd party Requests
for Services continued
► Decisionto participate must be made in a
  “knowing, intelligent, & voluntary way”
  (Heilbrun, 2001)
   Partial consent (except when court
    ordered)
   Assent / surrogate (when examinee
    lacks capacity)

►Notification    of purpose
                                             25
12. Record-Keeping & Fees

► DoAPA guidelines and legal requirements
 regarding records, established for clinical
 services, apply to forensic services?
► Reimbursement is   for time, not opinions
► Feesshould not be contingent upon the
 outcome of the case


                                               26
How do you know if you‟re facing an
         ethical problem?

► Obvious problems (e.g., sex w/ clients)
► Less obvious problems (defining the
  client)
► Unique variations
► Combinations



                                            27
                Resources
► Ethics   codes
► ASPPB    Code of Conduct
► General bioethical    principles
► Position   papers & specialty guidelines
► Articles, chapters,   books


                                             28
         Resources continued
► Courses,     workshops
► Ethics   committees
► Liability   insurance carrier

► Experienced &     knowledgeable colleagues

► Laws


                                               29
Addressing Ethical Challenges or
          Uncertainty

► Consulting   colleagues & the “I think”
 problem




                                            30
Ethical Decision-Making Models

               vs.

       “Bottom-Line Ethics”




                                 31
Ethical Decision-Making Models
► Canadian Psychological   Association, 2000
► Haas  & Malouf, 2002
► Hanson, Kerkhoff, & Bush, 2004
► Kitchener, 2000
► Knapp & VandeCreek, 2003
► Koocher & Keith-Spiegel, 1998



                                               32
            5 Common Steps
        (Knapp & VandeCreek, 2003)
1.   Identification of the problem
2.   Development of alternatives
3.   Evaluation of alternatives
4.   Implementation of the best option
5.   Evaluation of the results

These models did not adequately consider
emotional and situational factors or the need
for an immediate response in some situations
                                                33
              8-Step Model
      (Bush, Connell, & Denney, 2006)

1)   Identify the problem
2)   Consider the significance of the context
     and setting

3)   Identify and utilize resources

4)   Consider personal beliefs and values

                                                34
          Bush et al. Model continued
5)   Develop possible solutions to the
     problem
6)   Consider the potential consequences of
     various solutions
7)   Choose and implement a course of
     action
8)   Assess the outcome and implement
     changes as needed
                                              35
 DOCUMENT
DOCUMENT
DOCUMENT




            36
When To Utilize Resources & Apply
           the Model
          Preparation

            Reaction




                                    37
           Remedial Ethics
In the tradition of remedial ethics,
“disciplinary codes represent only the
ethical „floor‟ or minimum standards to
which psychologists should adhere”
(Knapp & VandeCreek, 2006; p. 9).




                                          38
             Positive Ethics
      (Handelsman, Knapp, & Gottlieb, 2002)


►A shift in emphasis from misconduct
 and disciplinary action to the active
 promotion of exemplary behavior
► Pursuitof ethical ideals – aspirational
 principles


                                              39
     Positive Ethics continued
      (Handelsman, Knapp, & Gottlieb, 2002)

► Proactive, not  reactive
► Selecting the optimal ethical option
  often requires more than simply
  avoiding ethical misconduct (risk
  management); it requires a
  commitment to pursuing the highest
  ethical principles.

                                              40
        Positive Ethics continued

► Why   not?

 “It is easier to fight for one‟s principles
 than to live up to them.”
 Alfred Adler
 (1870-1937)




                                               41
   Case 1: Raw Test Data
        for records from an attorney /
► Request
 non-neuropsychologist

► What   to do?




                                         42
              Case 1 Analysis
1)   Identify the problem
      Test Security
       - invalidate future test results
       - redevelopment
      Nonmaleficence / General beneficence
      Laws
       - client access to records
       - discovery
       - copyright / proprietary rights
                                              43
2)   Consider the significance of the
     context and setting
      Forensic
      Attorney or court is client
      Discovery




                                        44
3)   Identify and utilize resources
►     APA Ethics Code
      Release of raw data (ES 9.04)
      Maintaining Test Security (ES 9.11)




                                             45
           RELEASE OF RAW DATA
                   (ES 9.04)
► Test   data: scores, responses, notes
► With  pt. release, psychologists provide
  data to the pt. or others identified in the
  release
► May refrain from releasing data to protect
  from pt./others from substantial harm,
  misuse, or misrepresentation of data or
  the test
                                                46
      MAINTAINING TEST SECURITY
                  (ES 9.11)
► Test Materials = manuals, instruments,
  protocols, & test questions or stimuli
► Does not = test data
► Psychologists make reasonable efforts to
  maintain the integrity & security of test
  materials & other assessment techniques
  consistent w/ law & contractual
  obligations, & in a manner that permits
  adherence to this ethics code
                                              47
   Problems with ES 9.04 & 9.11
► The  distinction between test data
  (examinee responses) & test materials
  (stimuli) is artificial. E.g., with verbal
  learning or visual reproduction measures,
  the responses/data are the stimuli/
  materials.
► Providing test responses w/o the context
  of the test questions will have a high
  probability of misinterpretation/misuse/
  harm.                                        48
        Clarification from APA
► APAEthics Office: once test materials
 have responses written on them, they
 “convert” to test data (Behnke, APA
 Monitor, 2003, 34,7).
► Bywriting responses on test materials,
 the test materials are no longer test
 materials and no longer fall under the
 protection of ES 9.11.

                                           49
► 2002    Code: it is important to safeguard
  test materials (e.g., protocols) when they
  are blank but not when they have
  answers written on them.
► This position:
    facilitates release of records
    does not facilitate the safeguarding of
     psychological tests
    is inconsistent with other ethics
     resources
    is inconsistent with copyright laws
                                               50
    Standards for Educational &
       Psychological Testing
► 11.7:  Test users have the responsibility
  to protect the security of tests…
    …in litigation, inspection of the
    instruments should be restricted - to
    the extent permitted by law - to those
    who are legally or ethically obligated
    to safeguard test security
► 11.8: Responsibility to respect test
  copyrights
                                              51
► 11.9: Remind test takers & others who
 have access to test materials of the legal
 rights of test publishers

► 11.15:Be alert to potential
 misinterpretations of test scores &…take
 steps to minimize or avoid foreseeable
 misinterpretations & unintended negative
 consequences

                                              52
     Specialty Guidelines for Forensic
           Psychologists (1991)

VI. B. Forensic psychologists have an
obligation to document and be prepared to
make available, subject to court order or
the rules of evidence, all data that form the
basis for their evidence or services.



                                                53
Specialty Guidelines for Forensic Psychology
              Draft (2/13/05)
► 10.   Privacy, Confidentiality, & Privilege
    10.03 Release of Information:
     During the initial consultation with each
     participant…make known who is authorized
     to release or access the information.
     …the forensic psychologist complies with a
     properly noticed & served subpoena or court
     order, or other legally proper consent from
     duly authorized persons, unless there is
     compelling reason not to do so. (examples
     provided)
                                                   54
Specialty Guidelines for Forensic Psychology
               Draft (2/13/05)
► 10. Privacy, Confidentiality, & Privilege
    10.05 Access to Information:
     Forensic psychologists provide their clients
     access to, and a meaningful explanation of,
     all information that is in the psychologist‟s
     records for the matter at hand, consistent
     with existing federal & state statutes,
     applicable codes of ethics & professional
     standards, & institutional rules & regulations.
     Unless the party is the client, the party is not
     to be provided access to the psychologist‟s
     records w/o the consent of the client.
                                                        55
Specialty Guidelines for Forensic Psychology
              Draft (2/13/05)

► 13.   Documentation
    13.01 Documentation, Compilation &
     Provision of Data Reviewed
    Make available all data reviewed during the
    course of providing professional services
    subject to & consistent with court order,
    relevant rules of evidence, & professional
    standards

                                                  56
     THE COLLEGE OF
PSYCHOLOGISTS OF ONTARIO
          Principle 7.5(2)
  Standards of Professional Conduct




                                      57
Usually psychologists are reluctant to
release raw data other than to another
member of the College due to a concern
for the potential misinterpretation or
misuse of such test scores. When such
concerns exist, it would be prudent to
send an accompanying letter outlining the
member‟s concerns regarding improper
use of the information and the dangers of
misinterpretation by unqualified personnel
(emphasis added).
                                             58
 NAN Policy & Planning Committee
► NAN   fully endorses the need to maintain
  test security
► Views the duty to so as a basic
  professional & ethical obligation
► Strongly discourages release of materials
  when requests do not contain appropriate
  safeguards
► Urges taking reasonable steps to ensure
  adequate safeguards when releasing test
  materials                                   59
          NAN 10-Step Guidelines
1.   Written request
2.   From competent pt.
3.   To a qualified professional
4.   Assurance that test security is
     maintained
5.   Is the request a subpoena?
6.   Is the request a court order?
7.   Does it include provisions for test
     security?
8.   Is release to an unqualified person
     required?                             60
9.  If a court order, & test security is not
    specified, obey but request that
    safeguards be put in place
    no broad circulation
    no unauthorized copies
    minimize presentation in court
    protect/seal exhibits & court records
    destroy or return test materials
10. If court order, & test security is
    adequate, obey in a timely fashion.
                                               61
D40/APPCN/AACN Position Paper
Alternatives to releasing test data that are
also test materials:
1) Release data summary sheet alone
2) Release data w/ protocol stimuli blacked
    out
3) Release data to another NP
4) Release data set into a sealed record, or
    request a protective order of the test
    materials which would limit their release to
    the case.
                                               62
In most situations, conflicts can be reconciled
  with such alternatives. In addition:
► Discuss conflicting obligations w/ the
  persons who requested the data.
► Appeal to the court directly (if court is
  involved) to negotiate a suitable
  arrangement:
   Determine through in camera proceedings
    whether the test data is relevant
   File a motion to quash subpoenas
   File protective orders
                                                  63
        through informed consent
► Specify
 procedures:
   Data recorded on test protocol sheets will not
    be released
   Requests for information will be limited to
    provision of a report & data summary sheet




                                                     64
         Jurisdictional Laws
► Laws “place restrictions on the
 psychologist‟s discretion, so psychologists
 would need to carefully consider
 withholding any test data information”
 (Celia B. Fisher, Ph.D., chair of the Ethics
 Code Task Force; APA Monitor, 11/02, p.
 56).


                                                65
         FRE (1993) 705
“The expert may testify in terms of
opinions or inference & give reasons
therefore w/o first testifying to the
underlying facts or data, unless the court
requires otherwise. The expert may in
any event be required to disclose the
underlying facts or data on cross-
examination.”


                                             66
                        FRE 402
        (Jan. 2, 1975, P.L. 93-595, § 1, 88 Stat. 1931.)

► All   relevant evidence is admissible
   Exceptions: e.g., “privileges”




                                                           67
            HIPAA - Briefly
► Increased pt.   access to medical records.
► Information compiled in anticipation of
  use in civil, criminal, & administrative
  proceedings is not subject to the same
  right of review and amendment as is
  health care information in general.
► The most stringent legal requirement
  applies.

                                               68
      Clarification from DHHS
► Richard Campanelli, Director   of the Office
 for Civil Rights:
  …it would not be a violation of the Privacy
   rule for a covered entity to refrain from
   providing access to an individual‟s
   protected health information, to the
   extent that doing so would result in a
   disclosure of trade secrets.

                                                 69
        Federal Copyright Laws
► Harcourt: Terms & Conditions of Purchase
   Test materials are copyrighted trade
    secrets
   Purchaser agrees to protect the trade
    secrets by maintaining test security,
    including only copying test forms for
    the purpose of conveying the info to
    another qualified professional.
   Purchaser agrees to seek a protective
    court order if required to produce
    copies in court or administrative
    proceedings.
                                             70
            U.S. Supreme Court
        Edison Co. v. National Labor
► Detroit
 Relations Board (NLRB) 440 U.S. 301 (1979).
   Psychologists should not release raw data and
    psychological test materials to nonpsychologists
   The legal presumption is that psychologists
    should take reasonable steps to protect test
    security
   Psychologists may assert the privilege not to
    disclose raw data or psychological test materials
    in federal court
                                                    71
New York State Mental Health Law
► Itis unprofessional conduct to fail to
  make available to a pt./client copies of
  documents in the possession or under the
  control of the licensee that have been
  prepared for & paid for by the pt/client.
► May deny access if the info could
  reasonably be expected to cause
  substantial & identifiable harm.

                                              72
►Ifdenying, must state in writing the
 grounds for refusal & inform that the
 pt. may appeal to a review
 committee
► Does   not specifically address test data




                                              73
  Resolving Conflicts Between Ethics & Law
APA Ethics Code
► Intro
   If this Ethics Code establishes a higher standard
    of conduct than is required by law,
    psychologists must meet the higher ethical
    standard
► ES   1.02
   If ethics conflict w/ law…psychologists make
    known their commitment to the Ethics Code &
    take steps to resolve the conflict. If the conflict
    is unresolvable via such means, psychologists
    may adhere to the requirements of the law
                                                      74
4)   Consider personal beliefs and
     values
►    Conflicts between ethics & law:
     In cases in which no solution
     adequately satisfies both demands,
     neuropsychologists “ultimately must let
     their own personal conscience guide
     them” (Slick & Iverson, 2003, p. 2032).
►    Pursuit of highest ethical ideals takes
     more time, effort, & resources
                                               75
5)   Develop possible solutions to the
     problem
►    Release raw test data as requested

►    Take steps to maximize test security
     (e.g., follow NAN‟s guidelines)




                                            76
6)   Consider the potential
     consequences of various solutions
►    Releasing test data to
     nonpsychologists threatens test
     security & may have harmful
     consequences

►    Taking steps to maximize test security
     may be irritating to those involved &
     will require additional time/effort
                                              77
7)   Choose and implement a course of
     action
►    Consistent with highest ethical ideals,
     follow NAN‟s 10-step guidelines




                                               78
8)   Assess the outcome and
     implement changes as needed
►    Raw test data is released in a manner
     consistent with discovery
     requirements, & test security is
     maximized



All steps are documented

                                             79
Case 1 Discussion




                    80
                     Case 2
Dr. A, a neuropsychologist in independent
practice, receives a referral to evaluate a 68 y.o.
woman who sustained a left MCA infarct 6 months
ago. The referral is from the pt.‟s neurologist to
“rule out dementia & depression” so that
appropriate medications can be prescribed.
During the initial interview, Dr. A finds that the
patient‟s receptive language is adequate for the
clinical interview, based on her ability to follow
multi-step instructions and respond appropriately
to yes/no questions.
                                                      81
However, Dr. A also found the pt to have
severe expressive language deficits and a
dense right hemiparesis. He wonders
whether empirical evidence exists to support
his use of traditional neuropsychological
tests with patients who have such impaired
expressive language skills & are unable to
use their dominant hand. He considers the
professional & ethical implications of
accepting this referral & wonders what he
should do.
                                               82
Identify the Problem or Dilemma
Dr. A is asked to evaluate a pt. & address
referral questions for which little empirical
evidence exists to support the use of his usual
tests. In addition, although Dr. A frequently
performs evaluations for the purpose of diagnosing
dementias & mood disorders, he has not evaluated
patients w/ severe strokes for many years. Most of
the tests that Dr. A typically uses were not normed
with individuals who have severe expressive aphasia
or hemiparesis involving the dominant hand.
                                                      83
Because of the pt.‟s aphasia & HP,
administration of the tests will need to be
modified. The extent to which the test
results obtained from this patient will
accurately represent her neurocognitive
functioning and psychological state, given
the necessary modifications to test
administrations & lack of appropriate norms,
is extremely limited. As a result,
recommendations to the neurologist may
result in inappropriate tx decisions.          84
In contrast to these drawbacks, Dr. A may
be better able than the neurologist to
assess this pt.‟s neurocognitive functioning
& emotional state, even with the limitations
imposed on standardized testing, thereby
resulting in more accurate diagnoses &
better medication choices.


                                               85
    Consider the Context & Setting

Compared to some institutional practice
settings, Dr. A does not have ready access to
other healthcare professionals who may be
able to provide helpful consultation. Also,
compared to inpatient settings, the ability to
provide ongoing monitoring of the pt. to
further clarify diagnostic impressions & the
effects of medical trials is limited.
                                                 86
        Ethical & Legal Resources

Dr. A identifies the following primary resources:
►   APA Ethics Code (esp. ES 9.02, Use of
    Assessments)
►   Standards for Educational & Psychological Testing
    (esp. 10.1)
►   Americans with Disabilities Act
►   Chapter on test accommodations in geriatric
    neuropsychology by Caplan & Shechter, (2005)
►   Colleagues, D40 ethics subcommittee
                                                    87
The pt. has a moral, ethical, & legal right to receive
  an appropriate evaluation (ADA, 1990; GP D, Justice),
  yet determining the methods that constitute an
  “appropriate” evaluation can be challenging.
“A major issue when testing individuals with
  disabilities concerns the use of accommodations,
  modifications, or adaptations. The purpose of
  these accommodations or modifications is to
  minimize the impact of test-taker attributes that
  are not relevant to the construct that is the
  primary focus of the assessment” (SEPT, 1999, p.
  101).
Dr. A must consider the empirical support for any
  adaptations he may make to test administration,
  tempering his conclusions as needed.                    88
Having given due attention to the needed test
  accommodations and the potential limits to
  interpretations, Dr. A must consider whether he is
  sufficiently familiar with the relevant literature &
  has the requisite experience to competently
  perform the needed modifications & arrive at
  appropriate conclusions (ES 2.01, Boundaries of
  Competence; SEPT Standard 12.1).

“Knowing our limitations is sometimes as or more
  important than knowing what our science can
  offer” (van Gorp, 2005, p. 212).

                                                         89
Dr. A must also keep in mind that “In testing
  individuals with disabilities for diagnostic and
  intervention purposes, the test should not be used
  as the sole indicator of the test taker‟s functioning.
  Instead, multiple sources of information should be
  used” (SEPT 10.12).

If Dr. A determines that it is appropriate for him to
   proceed with the evaluation, he must present the
   foreseeable benefits & risks to the pt. & her legal
   representative, if someone other than the pt. has
   medical decision making authority (ES 3.10,
  Informed Consent, & ES 9.03, Informed Consent in
  Assessments; Johnson-Green, D. & the NAN Policy &
  Planning Committee, 2005; SEPT Standard 8.4).
                                                         90
      Personal Beliefs & Values
Dr. A‟s beliefs & values are consistent with those
  represented in the resources reviewed. He
  embraces the right of the pt. to receive an
  appropriate neuropsychological evaluation, as well
  as her right to decide whether to pursue an
  evaluation given the inherent limitations. He
  questions whether he can competently perform an
  evaluation with the required accommodations &
  derive accurate conclusions based on the
  information obtained.
                                                   91
              Possible Solutions
1.   Conduct the evaluation to the best of his ability,
     explaining to all parties the limitations associated
     with the conclusions.
2.   Conduct the evaluation after arranging for
     consultation with a colleague who commonly
     evaluates pts. who have sustained severe CVAs.
3.   Do not perform the evaluation. Inform the
     neurologist & the pt. that NP evaluation is of
     little value with such pts.
4.   Refer the pt to a neuropsychologist who has
     more experience w/ this population.
                                                        92
         Potential Consequences
1.   Performing the evaluation may provide helpful
     info regarding the pt.‟s NP functioning & dx;
     however, the potential for misinterpretation of
     the findings, given Dr. A‟s limited experience
     with this population, may be harmful to the pt.
2.   Conducting the evaluation w/ appropriate
     consultation may allow for appropriate
     conclusions to be drawn about the constructs of
     interest & provide an opportunity for Dr. A to
     improve his ability to work with stroke pts.
     However, the likelihood of generating accurate
     inferences exists with more experienced
     practitioners.                                    93
3.   Deciding to not perform the evaluation &
     informing the pt. & the neurologist that NP
     evaluations are not beneficial in such cases may
     deprive the pt., & future pts, of potentially
     valuable services.

4.   Referring the pt. to a colleague w/ more recent
     experience with stroke pts. & more familiarity w/
     the relevant literature would allow the pt. to get
     services that she needs & provide the
     neurologist w/ the info he needs to make an
     appropriate decision regarding medications. Dr.
     A determines that a qualified neuropsychologist
     is available through a local hospital-based
     outpatient rehabilitation program.
                                                        94
Choose & Implement a Course of Action

Dr. A chooses the 4th option & refers the pt. to his
  colleague in the outpt. rehab program. Had there
  not been a qualified colleague nearby, he would
  have chosen the 2nd option. He explains to the pt
  and the neurologist that it is in the pt.‟s interest to
  have the evaluation performed by a NP who
  specializes in working with individuals who have
  sustained severe strokes. Dr. A contacts the other
  NP & facilitates the referral.

                                                        95
Assess the Outcome & Implement
       Changes as Needed
The pt. received the most appropriate
evaluation possible, although the confidence
placed in some of the conclusions remained
limited by the needed test accommodations.




                                           96
Case 2 Discussion




                    97
                   Case 3
Dr. A, psychologist on an adult inpatient BI
rehabilitation unit, is told to provide coverage for
Dr. B., the neuropsychologist on the pediatric unit
who is out sick. Dr. A agrees and goes to the unit
with his usual tests because he does not have
access to Dr. B‟s office where the pediatric tests
are stored. However, because his tests were not
normed with children, he is determined to score
them qualitatively and interpret them with caution.

                                                   98
The 1st pt. to be evaluated is a 12 y.o. bilingual
  (Spanish-English) boy w/ a TBI who had
  progressed from coma to RLAS VII (Automatic-
  Appropriate) in the past 4 wks. Dr. A performs
  the evaluation, including testing, with the pt‟s
  mother present in the pt.‟s room to help
  encourage & reassure the pt & interpret
  instructions & responses if needed.
During administration of the TMT, the pt. states,
  “This one is fun. I like doing it in OT.” The pt.‟s
  roommate adds that he likes it too. The
  roommate then agrees to remain quiet for the rest
  of the evaluation, but his physical therapist soon
  arrives & takes him for therapy anyway. Dr. A
  completes the evaluation & writes his brief report
  in the pt.‟s chart.
                                                    99
        The Problems/Dilemmas
1.   Dr. A allowed himself to be put in a
     situation that he was not qualified to
     handle, to the detriment of the pt. He is a
     psychologist but not a neuropsychologist.
     He should not perform NP services without
     the necessary education, training, &
     experience to competently do so. Also, he
     usually works w/ adults & is not qualified
     to work with pediatric populations.
                                               100
2.   Dr. A performed an inappropriate
     evaluation. He used adult tests w/ a child
     & did not appear to consider the potential
     impact of the patient‟s ethnicity, cultural
     background, or English language fluency
     on the tests selected or the validity of
     results obtained. There was a complete
     lack of scientific evidence to support any
     conclusions Dr. A may have drawn.


                                               101
3.   Dr. A failed to adequately manage aspects of
     practice that he would have been expected to
     manage in any context.
      He did not take steps to maximize privacy &
       confidentiality, & he performed the evaluation
       with others in the room.
      He used the pt.‟s mother as an interpreter,
       although her ability to provide accurate
       interpretation & to do so objectively with her
       child was unknown but unlikely.
      Any consent that he obtained from the pt. & his
       mother could not have been based on an
       informed decision because Dr. A was
       apparently unaware of at least some of the
       risks himself & dismissed the rest as not
       sufficiently important to prohibit the evaluation.
                                                       102
4. Dr. A learned that other healthcare professionals
   were misusing NP instruments, possibly with the
   knowledge of Dr. B. The OT apparently used the
   TMT as a therapeutic exercise on a regular basis.
   Dr. B, who regularly worked on the unit must
   have been aware of the OT‟s practice & either
   supported, or did not adequately oppose, the
   practice.
5. Problematic institutional or departmental
   practices emerged, such as not providing
   appropriate coverage during Dr. B‟s vacation &
   pressuring Dr. A into providing services that he
   was not qualified to perform.

                                                   103
         APA Ethical Standards
► 2.01   Boundaries of Competence
          ? 2.02, Providing Services in Emergencies
► 9.01   Bases for Assessments
► 9.02   Use of Assessments
► 9.06   Interpreting Assessment Results
► 2.04   Bases for Scientific & Professional
         Judgments
► 4.01   Maintaining Confidentiality
► 4.04   Minimizing Intrusions on Privacy
                                                       104
► 9.11   Maintaining Test Security
► 3.10   Informed Consent
► 9.03   Informed Consent in Assessments
► 4.02   Discussing the Limits of Confidentiality
► 9.07   Assessment by Unqualified Persons
► 1.04   Informal Resolution of Ethical
         Violations
► 1.03   Conflicts Between Ethics &
         Organizational Demands
                                                105
  The Competence Continuum
Case 4.1: A board certified neuropsychologist with
years of experience evaluating and treating adults
with traumatic brain injuries in rehabilitation and
forensic settings finds the potential marketing
value of work with regional teen sports programs
appealing. He arranges with local junior high
school and high school football programs to
provide comprehensive neuropsychological
evaluations of concussed athletes for the purpose
of making return-to-play decisions.

                                                 106
► ES 2.01 (Boundaries of Competence): by
 transitioning into a related but new area of
 practice, he is practicing outside of his areas
 of competence.

► Inaddition to lacking familiarity with the
 state-of-the-art methods and procedures
 employed in sports neuropsychology, this
 neuropsychologist lacks experience with
 adolescents.

                                               107
Case 4.2: A neuropsychologist graduated
from clinical psychology doctoral program
with a specialization in neuropsychology.
After completing a 2-year postdoc in NP,
she accepted a staff position in a prestigious
teaching hospital. She gradually
transitioned to part-time private practice
over the following 5 years. She became
very busy in her private practice & personal
life & did not have time to attend
conferences or maintain an affiliation with
the teaching hospital.
                                            108
  Now, 10 years after completing her postdoc,
  the families of some of her patients are
  questioning her conclusions based on
  information that they “found on the
  Internet,” & her forensic work is being
  strongly criticized by opposing experts, with
  frequent comments that her results cannot
  be considered valid.
► ES 2.03 Maintaining Competence


                                              109
     Bases for Scientific and
     Professional Judgments
► Case 4.3: A very experienced & highly
 credentialed neuropsychologist evaluates
 and treats litigants with MTBIs sustained in
 MVAs or work-related accidents. He
 commonly concludes that severe
 neurocognitive deficits & total & permanent
 disability more than 6 months post injury
 are causally related to neurological trauma
 sustained in the accidents.
                                            110
 He frequently states that he can determine deficits
 & disability better than independent examiners
 because he has interacted with the patients for a
 much greater period of time.

► The neuropsychologist has a mistaken belief that
 his impressions & observations over time carry
 more weight than objective, actuarially based
 neuropsychological evidence interpreted based
 upon generally established scientific & professional
 knowledge of the discipline (see, e.g., Larrabee,
 2005).

                                                    111
► Failure  to meet the requirements of this
  ethical standard may reflect a failure to
  remain abreast of scientific advances.
► For competent clinicians who remain
  abreast of scientific & professional advances
  & still fail to meet the requirements of this
  ethical standard, especially in forensic
  contexts, the possibility of intentional bias
  must be considered.
► In either case, consumers of NP services &
  the reputation of the profession suffer.
                                              112
         Cooperation with Other
          Professionals (ES 3.09)
► Case   5.3: A new adult patient is seen for an
 initial clinical interview. She reports that she
 recently underwent a neuropsychological
 evaluation and began treatment with a clinician
 across town but did not want to continue with him
 because she did not like his abrasive interpersonal
 style. The second neuropsychologist was very
 familiar with the prior neuropsychologist through
 opposing forensic activities, and longstanding
 animosity existed between them.
                                                   113
The patient stated that she would have the
prior neuropsychologist send her test report
and other records to the second
neuropsychologist. After multiple verbal
and written requests for the records from
both the patient and the second
neuropsychologist over the course of six
weeks, the second neuropsychologist sent a
certified letter to the first neuropsychologist
stating that if the records were not received
within two weeks, a complaint would be
filed with the state board for psychology.
                                              114
 Advertising & Other Public Statements

► Case  5.1: A neuropsychologist in
 independent practice hires an ITT
 consultant to develop a website for his
 practice. His website describes him as a
 specialist in numerous psychological
 specialties and aspects of practice and lists
 his credentials, including his doctorate,
 licensure, memberships in professional
 organizations, and board eligibility.
                                                 115
In addition, his website states that he has lectured
internationally (he does not reveal that he based
that statement on his presentation of one poster
at an INS conference – in the U.S.) and is a
faculty member of a local prestigious medical
school (based on having once supervised a
neuropsychology intern at the medical school).
His website further indicates that he has testified
more than 300 times, and it provides a testimonial
from an attorney stating the neuropsychologist is
well-respected as an expert witness.


                                                   116
► ES5.01 Avoidance of False or Deceptive
 Statements
► Thisneuropsychologist exaggerated at least
 some of his accomplishments & credentials.
 Using designations or terms that are
 understood by members of the profession
 but can be misleading to the public should
 be avoided. Only obtained credentials
 should be used; terms such as “ABD”,
 “doctoral candidate,” & “board eligible” are
 not credentials.
                                            117
► Neuropsychologists who  retain others for
 marketing & publicity purposes are
 responsible for the statements made &
 advertisements generated by such parties
 (Ethical Standard 5.02, Statements by
 Others).




                                              118
             Record Keeping
► Case  8.1: A NP performs a substantial amount of
 medicolegal work; that is, he provides clinical
 evals & ongoing tx with pts. who are involved in
 litigation following MVAs. His initial consultation
 notes, which are often addressed to the no-fault
 claims representatives, are typed on letterhead, as
 are his NP reports; however, the notes of his tx
 sessions are handwritten, do not include any
 identifying information for him or the pts., & are
 largely illegible.
                                                   119
► Ethical  Standard 6.01 Documentation of
  Professional and Scientific Work and Maintenance
  of Records
► The NP in this case generates appropriate reports
  for the initial consultation & NP eval; however, his
  tx notes lack essential identifying information &
  the clarity needed for readers to determine the
  nature & appropriateness of the tx provided & the
  status of the patient. Such inappropriate
  documentation impedes the provision of clinical &
  forensic services by others.
► It is also peculiar that some reports are written to
  the no-fault claims representative rather than the
  referring doctor, a practice that raises questions
  about the clinical nature of the case.
                                                     120
                  Research
Case 9.2: Dr. A is interested in advancing the
ability of clinical neuropsychologists to determine
adequate examinee effort from invalid effort. She
develops a new SVT that appears to assess
working memory but really assesses effort. She
informs the staff NP who works for her to
administer the test as part of the evaluations of all
TBI pts. admitted to the unit in the next 2 weeks.
She states that she has been doing so for the past
2 weeks & has obtained some very promising
data.

                                                    121
► Dr.A‟s standardization procedures are
 highly suspect (ES 9.05, Test Construction).

► She  did not obtain approval from her
 facility‟s institutional review board (ES 8.01,
 Institutional Approval).




                                               122
► Including simple mental tasks that appeared to
  assess working memory in a more comprehensive
  NP evaluation likely posed very little risk of harm
  to the patients who were being used as research
  participants. Nevertheless, she did not discuss the
  experimental nature of test with patients, or their
  proxies, and obtain their approval (ES 8.02,
  Informed Consent to Research).
► Dr. A may have believed that she was justified in
  foregoing the informed consent process (ES 8.05,
  Dispensing With Informed Consent for Research).

                                                    123
► Symptom  validity research often requires
 deception. Participants must believe that
 symptom validity tests are assessing
 memory or another neurocognitive construct
 other than effort. Thus, Dr. A may have
 been justified in not informing pts. of the
 nature of the study in advance. However,
 she should have debriefed the pts. after
 obtaining the data (ES 8.08, Debriefing).

                                          124
► Dr.  A attempted to use her position of
  influence to coerce a junior colleague to
  engage in similar ethical misconduct (ES
  3.08, Exploitative Relationships).
► Whether Dr. A‟s dispensing with informed
  consent and her use of deception were
  appropriate may be matters of debate;
  however, such debate must occur with
  colleagues and the institutional review
  board prior to performing the research.
                                              125
                 Therapy
► Case  11.1: A neuropsychologist who
 recently transitioned from performing
 evaluations on an epilepsy unit to consulting
 in a skilled nursing facility (SNF) performs a
 brief neuropsychological evaluation of a 28-
 year-old woman who is 2 years post severe
 TBI. Based on findings of severe
 impairment with attention, memory, and
 processing speed, the neuropsychologist
 begins cognitive rehabilitation.
                                              126
Three times per week, the neuropsychologist
brings a laptop computer into the patient‟s
room, sets up a series of computer-based
mental exercises, helps the patient begin the
exercises, and then leaves the room to see
other patients.




                                                127
► ES   2.01, Boundaries of Competence

► Evidence-based tx  - attempt to match
 interventions with patient & injury
 characteristics. In this case, the
 neuropsychologist should have known that
 this patient would be unlikely to benefit
 from the intended intervention.




                                             128
 Unrealistic expectations →undue
 disappointment for the pt. & family (ES
 10.01, Informed Consent to Therapy; ES
 3.04, Avoiding Harm).

► Theneuropsychologist may be committing
 fraud by billing for individual tx without
 maintaining 1:1 interaction.



                                              129
               Conclusions
► Ethical   challenges are many and varied.
► Adopt   an ethical decision-making model.
► Use  multiple ethical and legal resources,
  including ethics committees and
  colleagues.
► Take   a positive, proactive approach.


                                               130
         Conclusions continued
► View ethical guidelines as a resource for
 guiding optimal professional behavior, not
 just as minimum requirements for
 conduct.




                                              131
“To see what is right, and not to do it, is
want of courage or of principle.”
  Confucius
  (551 BC - 479 BC)




                                              132
            Contact Info
►Shane   S. Bush, Ph.D.
 (631) 334-7884
 www.LI-Neuropsychology.com
 neuropsych@shanebush.com




                              133

								
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