"Our government is the potent, the omnipresent teacher. For good or for ill it teaches the whole people by its example.
Crime is contagious. If the government becomes a law breaker, it breeds contempt for law; it invites every man to become a law unto himself."
–Supreme Court Justice Brandeis

Wednesday, August 26, 2009

Arguments made by custody evaluators for not turning over test records and data, and why those arguments are wrong

Note: Cross posted from [wp angelfury] A Human Rights Issue-Custodial Justice.




Arguments made by custody evaluators for not turning over test records and data, and why those arguments are wrong

Psych argument: I am ethically required by the APA "to make reasonable efforts to maintain the integrity and security of tests and other assessment techniques consistent with law, contractual obligations, and in a manner that permits compliance with the APA Ethics code" (Standard 9.11, Maintaining Test Security).

    The APA Ethics Code, Standard 9.11, Maintaining Test Security (Ethical Principles of Psychologists and Code of Conduct of the American Psychological Association http://www.apa.org/ethics/code2002.html).

Wrong. By its own language, the APA ethics code, an extra-legal code of ethics of a private trade association, requires compliance with the law. In the law, there is a hierarchy of authority. Higher authorities control lesser authorities. At the top is the U.S. Constitution, and the case law interpreting it, recognizing fundamental rights of fairness, due process, and cross-examination. Below that are federal statutes that supersede state laws. Below that come state laws, constitutional, statutory, and case law. Below that come administrative regulations. At the very bottom is the law of private contract, such as the APA regulations or the contracts of nonparties who voluntarily -- and for profit, knowing in advance that they will have a conflict of interest, nevertheless have injected themselves into other persons' litigation.

Lower authorities that defer to matters otherwise required by the law must be interpreted consistent with higher legal authority. Thus, it is neither "reasonable" nor "consistent with law" to posture that a private contract might supersede the requirements of the constitution.

Psych argument: The APA ethics code is not merely private, because in this case it is incorporated into state law, either statutory, or in the regulations governing psych conduct, so it has equal authority as law. For this reason, I cannot respond to a subpoena -- even one that is considered to have the force of law, but must get a judicial ruling to resolve the conflict.

    The APA ethics language is repeated in multiple states' psychology regulations, e.g. in Florida's Administrative Code 64B19-18.004.

Wrong. The Administrative Code regulating psychology, albeit a step up from private contract, cannot be interpreted as law that modifies higher legal authority or more compelling constitutional rights, and still must be interpreted in a manner that is consistent with those constitutional rights and superseding law. In the United States of America, we do not permit Court of Star Chamber proceedings, in which the underlying data upon which expert opinions are based, gets to be kept secret from the litigants. Since that's not an option, there's nothing for a court properly to decide. See additional discussion below on the Florida code.

    (In part, these codes and industry regulation schemes are self-serving trade promotion and protection. For example, see Tana Dineen: "Psychological Illusions: Professionalism and the Abuse of Power" Presented at the Symposium: (Ab)Using Power: The Canadian Experience. Vancouver, B.C. May 8, 1998. A revised version of this paper is available in (Ab)Using Power: The Canadian Experience. Boyd, Susan C., Chunn, Dorothy E. and Menzies, Robert (Eds). Halifax, NS: Fernwood Publ. 2001. Available at http://tanadineen.com/writer/writings/index.htm )

Psych argument: The APA Ethical Code prohibits psychologists from distributing test data and other assessment records to people untrained to use them, "to protect a client / patient or others from substantial harm, or misuse, or misinterpretation of the data or the test" (Standard 9.04a)

Wrong. This is a two-part assertion, and both parts are wrong. First, the APA ethics code does not control higher legal authority. If and to the extent it is incorporated into psychology regulations, it still does not control over higher legal authority.

         Second, there is no research evidence anywhere establishing generally that preventing the release of psychology test data and other assessment records to "people untrained to use them" will protect anyone, or ever has protected anyone, or, conversely, that the release of such records in general has harmed or will harm anyone. While this all sounds plausible, and it is possible creatively to imagine situations in which such harm theoretically could result, it is simply not established as a general rule. On the other hand, it is axiomatic in the law that deprivation of due process and the right of cross examination is a fundamental harm. In addition, misuse and misinterpretation of test data, the lack of validity of many of the tests, the lack of interrater reliability, and high controversy over the efficacy and use of many of these tests is also well-known.

Psych argument: The National Academy of Neuropsychology (another professional psychology association) agrees with the APA position, which gives this position even more weight. The Specialty Guidelines for Forensic Psychologists and the Standards for Educational and Psychological Testing (SEPT) also agree.

Wrong. The psych's attempted "appeal to authority" is an error of both logical reasoning and legal reasoning. The National Academy of Neuropsychology is not a legal authority. The Specialty Guidelines for Forensic Psychologists is not law, and its authors are not legal authorities. A dozen more me-toos from psych trade organizations would add not a whit of weight. (Note the psych argument itself stands as evidence that psychs by reason of their training do not know what constitutes legal authority, do not understand or appreciate the justice system, and do not belong in courts of law.)

Psych argument: The Specialty Guidelines for Forensic Psychologists and the Standards for Educational and Psychological Testing (SEPT) developed jointly by the American Educational Research Association, American Psychological Association and The National Council on Measurement in Education, "acknowledge the importance of maintaining test security and ensuring that only those qualified to interpret raw test scores be afforded the opportunity to do so, for the purpose of preventing harm".

Wrong. More appeal to authority. Repeating the assertion does not make it more correct. There is still no evidence. There is no research evidence anywhere establishing that preventing the release of psychology test data and other assessment records actually protects or ever has protected anyone other than those with an interest in making money from selling or using these instruments.

         (To the extent that the trade promotion interest of a third party is in conflict with the fundamental due process rights of the actual litigants in a court case, it should be remembered that the third party voluntarily injected itself into the proceedings, knowing in advance what its interests were, and thus implicitly waived those interests in deference to the litigants' higher interests in due process and fundamental fairness.)

Psych argument: Failure to protect test security from unqualified users harms the integrity of tests because the tests can become invalidated through their placement in the public domain, thus depriving the public of effective test instruments.

Wrong. This argument confounds copyright interests ("public domain"), which are specific persons' and groups' profit-motivated interests, with generalized public harm from, presumably, the public's need to be able to take psych tests.

No research has established that any harm will come to the public if psych testing were not available. While it is plausible as an hypothesis, no evidence establishes this. Indeed, the public managed very well for hundreds of years without psych testing and there is no evidence that the public is better off, more well adjusted, healthier, or happier, because of the availability of psych tests.

The allusion to the copyright issue indicates more truthfully whose and what interests are of concern to the trade organizations and the test publishers.

Additionally, the argument raises the question of how it could be that these tests -- if so ostensibly reliable that they can and should be used in a forensic setting -- could be so lacking in robustness and so easily corrupted that they would no longer be useful if a member of the public, determined to respond honestly in order to obtain therapy, happened to see the test materials at some prior time because the materials were in a court file, instead of a college library, where any undergraduate psych major might peruse them. (Note the difference between a test administered in a forensic setting and one administered for the purpose of receiving therapy.)

         The argument begs the question of what all the people who DO have knowledge of these tests do if these tests are presumably so needed by the public. Don't psychologists ever require therapy? How about other mental health professionals, school personnel, test publisher employees, researchers, judges and lawyers who deal with forensic experts, and every person who at some point in the past already took one of the tests? The argument is nonsense. The real interest at stake has nothing to do with public welfare.

Psych argument: For example, the Law School Admission Test (LSAT) would be invalid if the answers to the LSAT were released and placed in the public domain.

Similarly, psychological tests cannot be made public without invalidating the tests, just as examinations are invalid if the questions are published in advance.

Wrong. The LSAT and other similar standardized tests are not even vaguely analogous. First, they have sufficient validity that test questions can be changed from administration to administration without devastating the test. In other words, they are real tests, testing real things, with actual right and wrong answers. Second, the test protocols, scoring methods, past test questions, and practice questions routinely are distributed by the test publishers to future test takers, and no great hue and cry about public harm is occurring because some people practice for them and others do not. And, even if the exact questions on the test about to be taken are not given out, the substance of what will be asked in the questions is -- and is expected to be studied.

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