Department of Psychiatry, VA Nebraska-Western Iowa Health Care Systems, Creighton University School of Medicine, Nebraska, US
*Corresponding author: Rohn Johnson, Creighton University School of Medicine Department, Nebraska, US; E-Mail: email@example.com
Received Date: 8 December, 2016; Accepted Date: 28 December, 2016; Published Date: 03 January, 2017
The article provides a concentrated guide on the ethical,professional, and cross-cultural issues associated with setting up a forensic practice for clinical mental health care providers. Several forensic mental health private practice issues are examined (e.g., why start this type of practice and self-assessment?). The discussion focuses attention on the imperatives of proper legal, and ethical training, then moves to the benefits of practical forensic mental health experiences. The author also presents the requirements for establishing and maintaining the business side of a forensic mental health private practice, relationships with legal system colleagues, psychological/legal constructs, professional associations, and adherence to rigorous standards. Time is spent examining the need for cross-disciplinary competencies for the demands stemming from various forensic practice venues of clinical mental health care providers(e.g., juvenile fire setter programs, police departments, probation departments, drug courts, mental health courts, tribal and veteran courts). A case vignetteis analyzed to highlight some potential pitfalls for health care providers who are not properly prepared for the challenges of a forensic mental health private practice. Finally, implications for practice, research, and training are reviewed.
Keywords: Clinical Mental Health; Ethics; Private practice
Why Should I Consider a Forensic Mental Health Practice?
The forensic area of practice has been a prevalent profession study decision within many of the behavioral science disciplines. Forensic mental health is of rising relevance due in large part to a combination of high profile circumstances (e.g., mass murders, OEF/OIF/OND veterans returning with PTSD, police misconduct, and terrorism). Any mental health professional’s decision to start a private practice is complicated by consideration of working in a field that may fuel anxiety and requires core competencies. The discussion here is circumscribed to identification of variables that are expected to improve a mental health professional’s ability to breathe life into their private practice venture. The potential benefits of informed development of a private forensic mental health practice are similar to those for traditional mental health service providers. Forensic psychologists will have access to a wide range of organized research-based information to help them formulate opinions in various cases. Additionally, mental health professionals learn how to assess resources, in order to prevent less fruitful efforts that would be ineffective for the forensic referral issue(s).
Probably more private practices fail than succeed. At a minimum, the cross-disciplinary competencies must include business skills, clinical experience, forensic expertise, and self-assessment [1,2]. For starters, a career in forensic mental health must include interest in the law that involves using clinical skills to address some psycho-legal referral questions (e.g., civil commitment of someone whose mental state makes them a potential harm to themselves or someone else). For the most part, there are two sides to forensic work (civil and criminal). A mental health professional working on the civil side will address issues associated with adoptions, child custody, immigration,product liability, personal injury, worker’s compensation, patent infringement, etc. . On the criminal side, a mental health professional would have to be comfortable working with individuals accused of murder, sex offenses, police misconduct,alcohol-substance abuse related or other heinous crimes. Public concern about the intersection between mental health and the law is increasing on both national and international stages. For example, the Norway Killer, the Aurora Colorado Killer,Boston Marathon Bombing, Paris Bombing and other acts of terror are painful reminders of the need for forensic mental health specialists . In these types of cases mental health professionals are hired by the prosecution and/or defense counsel to evaluate the accused. Reports of mental health professionals and the rigorous cross examination of the opinions offered reveal a need to be quick and thorough, with accurate facts to support all professional work.
A professional must also be able to emotionally handle having his or her professional work challenged by attorneys and other mental health professionals who will offer counter opinions. Nowhere is the challenge greater than in the application of the M’Nauhgton Rule. The M’Naughton Rule refers to a threshold or test requirement for proof of a causal relationship between a person’s mental state at the time of the offense and the commission of the crime itself.In this case, a trier of fact would rely on the opposing testimony of qualified expertsas to whether or not the person that committed this act in question at the time was solely a consequence of their insanity. This process is one that is aimed at determining criminal responsibility. Each state and many countries vary in their interpretation of M’Naughton. As a result, the determination of criminal responsibility is often evaluated inthe context of applying criminal law considerations that are specific to the actual offense in those jurisdictions. From a forensic mental health perspective, the process is extremely complex and wrought with debatable features which are all in an effort to secure a Not Guilty by Reason of Insanity (NGRI) ruling from the trier of fact [5,6]. In this case, forensic testimony or reports offer the court important information about the circumstances and psychological status of the accusedat the time (i.e. most commonly diagnosed with a psychotic disorder atthe time of the incident) which is believed to have actually impacted their judgment or actions. The experts offer their opinions but it is the trier of fact that makes the ultimate decision regarding the person’s ability to actually know right from wrong under the circumstances of the crime. A forensic mental health professional would take years developing the recognized qualifications to justifiably charge the types of fees for this type of specialized expert testimony.
The private practice fee structure of forensic mental health may seem enticing when compared tothe reimbursement-related constraints found in traditional clinical practice. But any mental health professional developing a forensic practice must commit to the need for study to remain current in the area(s) that they work. The content base and tools used are always changing. These include federal and state laws, as well as various assessment-related updates (e.g.,DSM-5). A mental health professional would also have to craft a system of where to search for changes that are relevant to forensic work.
One must also consider the degree of time and financial commitment available. This is important to consider due to the demanding intensity and costs associated with graduate training programs followed by a significant time commitment needed for reviewing and preparing for legal cases. In addition, one must consider the degree of patience and stress one can handle given the flexibility of court scheduling and degree of paperwork required to review prior to a trial .
Work as a forensic mental health professional requires a self-care plan. An investigation conducted by Pope and Tabachnick (2004) revealed that of 800 psychologists, 61% experienced depressive symptomatology, 29% had suicidal feelings and 4% reported that they had attempted suicide. Mental health professionals working in the field of forensic mental health are vulnerable to some of the most psychologically jarring circumstances. In seeming awareness of these unwanted mental health work hazards, Freud reported, “Every analyst ought periodically…to enter analysis once more, at intervals of, say, five years, and without any feeling of shame in doing so".
On the upside, even a successful part-time practice provides monetary enticements, scheduling flexibility, and the satisfaction of being one’s own boss. The healthcare system of which the independent mental health practice is a part of is experiencing significant transformation. As a result, mental health professionals in conventional clinical practices are subjected to a significant reduction in reimbursement rates. In fact, the mental health rates have remained essentially unchanged for over a decade . While it takes considerable time, talent, and tenacity to develop, a forensic private practice allows more flexibility in establishing and/or negotiating fees for services .
While the focus of this paper is on private practice, a forensic professional can also work in clinical settings, healthcare centers, government agencies, courtrooms, and correctional facilities. Licensed and appropriately trained mental health professionals can provide assessment and treatment in various forensic settings. Forensic mental health professionals can perform evaluations, conduct psychotherapy or engage in research. The practice of using mental health professionals in the legal system began with the work of Hugo Munsterberg in 1921. His pioneering work marksthe first time that a mental health professional qualified as an expert witness. Whether traditional clinical or forensic mental health, there are inherent barriers (e.g., risks factors associated with starting these types of private practices).
It is wise for nascent professionals to be aware of myths about forensic mental health practice and recognize thatwhat they were taught about forensic issues may not work in actual private practice. It’s a mistake to believe that if you simply hang out your shingle they will come. Other misconceptions include that one must have fancy stationery or cards, or that only doctoral level people can work in the forensic mental health areas. The process of establishing a forensic practice for clinical mental health professionals must begin with a self-assessment of business and forensic competencies.
Self-assessment of your Business and Forensic Competencies
A mental health professional’s accurate self-assessment of business and forensic competencies functions as the foundation for starting private practice. The ability to self-assess is even more critical in forensic mental health because of the external scrutiny of the mental health professional’s work within the legal system. For example, a self-assessment has the potential to identify deficiencies in the practice development plan and various work products crafted to address referral questions. However, self-assessment for a forensic private practice is complicated by two factors. First, mental health professionals inadequately evaluate their own competencies. Second, an accurate self-assessment by nascent practitioners does not necessarily translate into their ability discern and then choose required actions. In this case, the mental health professional’s problem solving may not be relevant to the tasks being confronted at the time.
It is recommended that novice mental health professionals seeking to start a forensic practice use more of an external (i.e., outside of self) as opposed to an internal (i.e., inward looking approach). On the business side of forensic practice, the self-education process (e.g., workshops or readings) can be instructive. Limited economic resources may restrict a mental health professional’s ability to secure consultation in either the business or forensic aspects of their aspiring practice. To counterbalance a tendency for being overly positive, mental health professionals must use an objective external assessment of both their business and forensic competencies [9,10]. For example, the business-specific skills required for beginning a practice at a minimum include financial planning (i.e., operational capital for a specified time period), marketing to forensic clients, and operations management . On the practice side, clinical skills must feed into the forensic practice skills.
As a forensic evaluator and expert witness, self-awareness facilitatesopenings to identifyunwanted influences, secure feedback from others, and discernmethods that can be used to manage biases or other factors that might cloud professional judgment. An adept evaluator must also be able to anticipate and plan for thorny issuesexpected during rigorous cross-examination.Forensic psychologists must avoid contaminating professional work with personal matters [2,12]. For example, you have a client who has been accused of a violent sexual assault, and your close relative was previously the victim of a similar crime.Ethically, under these circumstances a mental health professional may be obligated to turn down the case or refer to another qualified mental health professional. Self-assessmentpermits the forensic mental health professional to gather insight and awareness of their forensic expertise. Brodsky (1991)reported that it is critical that we as mental health professionals contractually commit to accept a case only if wecan provide clear and convincing evidence of ourspecific expertise. In the absence of self-awareness, it isthen professionally impractical and unethical to participate in a case.
Myths about Forensic Mental Health Private Practice
A myth for the purposes of this paper is defined as a distorted or false belief regarding forensic mental health private practice. The media is the most convenient source for locating myths related to forensic mental health practice. Television shows such as CSI or Criminal Mindspromulgate the myth that criminal forensic cases can be quickly conceptualized and solved.The glamorized work settings (e.g., posh offices) and perks (e.g., flying on private jets) reinforce this unrealistic forensic private practice notion. To make matters worse, incompetent unlicensed television personalities like Dr. Laura and Dr. Phil also further perpetuate the distorted perceptions of the mental health profession as a whole.For example, some might erroneously assume that forensic mental health professionals work primarilyfor police departments or in correctional settings with felony inmates .
Another falsely assumed major part of forensic mental health is criminal profiling, despite the fact that one cannot simply apply to the FBI or any law enforcement agency to become a profiler, even as a private practice consultant. In reality, positions like this often require at least 10 years of relevant work experience in order to be eligible to pursue the few positions as supervisory special agent at the National Center for the Analysis of Violent Crime (NCAVC). Another misconception is that forensic mental health professionals solely work as expert witnesses by regularly providing sworn testimony . In reality, a forensic mental health professional in private practice may offer a wide range of services that could include consultation, friend of court briefs, court-mandated therapy, or various types of psycho-legal evaluations . Forensic mental experts that are qualified to serve as expert witnesses frequently do not testify when retained for a case. This circumstance is often a natural byproduct of the legal proceedings or a strategic decision made by the attorney involved in the case .
Thomas Szasz (1961)  fueled controversy over 50 years ago when he challenged popularly held psychiatric views in his book, “The Myth of Mental Illness.” In a somewhat related fashion, mental health professionals eager to pursue forensic mental health practice may be vulnerable to circular logic best observed in a unique set of myths.
Four Myths of the Forensic Mental Health Private Practice and Coinciding Rebuttals Include:
What they taught me in graduate or medical school will work in my forensic mental health private practice.
Education in mental health programs includes the coursework taken. From a forensic mental health private practice perspective, practitioners need training:that ispractice developing the skills and the securing of experience under qualified supervision. Unfortunately, the academic courses in graduate clinical programs and medical school do not provide sufficient attention to private practice, much less substantial forensic issues.
Even the training literature is dominated by a focus on developing clinical competence in mental health students [14-20]. Curriculums emphasize the development of interpersonal skills [21-25]. Despite the clinical focus, it is clear that there is a strong need for preparing students for private practice, at least for mental health practitioners. Education in the forensics area is also severely limited by core faculty with a paucity of experience in this area .
If I just hang out my shingle they will come.
A forensic mental health professional, unlike the movie Field of Dreams, cannot just say “if you build it they willcome.” Private forensic practice requires credibility in order to be placed on a retainer for work.Freshly minted mental health professionalsmust work hard to securereferral contacts and generate clients. It is not at all uncommon for attorneys to rely on familiar experts who have previouslycrafted written reports for them. Given this marketing reality, mental health professionals must develop name recognition and face exposure. A professional network can be strongly built in many ways. Publishing and presenting material/data to law enforcement, judges and other professionals is a good start. After a workingsystem is established a forensic mental health professionalis able torely on referrals for more work . Getting placed on a court-approved mental health list is one way to secure referrals. However, being placed on the list does not mean immediate referrals. This time delay may create a need to accept work that is not as lucrative, but it is not unusual to secure more lower paying referrals at the beginning of a career in forensic mental health.
I must have fancy cards and stationery.
The myth of, “I must have fancy cards or stationery” is another way of saying it is wise to not become preoccupied with what might be misperceived as the false trappings of a successful mental health forensic practice. Two recommendations emerge here. First, a mental health professional may need a cognitive strategy that prompts an override for whatever causes him or her to spend money on anything that does not directly result in a significant financial return. Second, choose the right resources to obtain the cheapest costs. In the beginning of private practice, it may be wiser to obtain less expensive business cards and rely on stationery that can be generated via the personal computer. Overhead and other cost containment practices are vital for long-term economic survival in private practice.
Only doctoral-level licensed professionals can work in this area.
The simplest thing to say here is there is no need or requirement to have a doctorate to work in a forensic mental health area . All 50 states license some form of mental health license that the minimum academic requirement is a master’s degree. Even some master’s-level licensed mental health counselors have provided a range of forensically-relevant services (e.g., rape trauma syndrome, false memory syndrome, family reunification, parental fitness and safety of the children) . A forensic mental health practitioner may function as an expert witness during the trial phase or penalty phase. S/hecan alsoconduct evaluations, offer opinions on potential mitigating/aggravating factors, anddirect consultation to attorneys .
The aforementioned myth rebuttals must also reinforce the relevance of the demanding nature, document review time and preparing for forensic cases. Moreover, one must self-assessthe amount of stress thatcan be reasonably toleratedwith full awareness of the constant changing of the court schedule andreports often required in advance of a legal case . The integration of mental health and law creates challenges for forensic mental health professionals.
Cross-cultural Issues in Forensic Mental Health Practice
The title of this section would suggest that focus would be on ethnoracial, gender, age, or an LGBTQIA matters. Any mental health professional unaware of the importance of being culturally responsive should not be attempting to establish a private practice in general, much less a forensically-oriented one. The cross-cultural issues referred to here are differences between the “clinical” and “forensic” cultures. The cultural rules for effectively operating are different. Forensically, the data gathering demands require mental health professionals to be culturally responsive. While forensic work is not therapy, the establishment of rapport is a pre-requisite as well as an understanding of various forms of communication with diverse groups. For example, in the mainstream American culture, making eye contact signals assertive listening. In contrast, in the Native American culture, making eye contact is assessed as overbearing and at times aggression.
The primary goal of the mental health professional is to assistthe trier of fact (i.e., court) make an informed legal decision and with no concerns about what advantages or disadvantages might occur for the client. The client’s DSM-5 diagnosis is used to form treatment plans or justify healthcare coverage. In the forensic setting, a DSM diagnosis is less critical and not required for all of the legal issues in the case .
Another forensically relevant cross-cultural issue may be observed in the use of various forms of evaluation methods (e.g., psychological testing) as well as clinical interviewing. Despite notable improvementsto cross-culturally validate tests, someremain that are only appropriate for Whites. If the evaluation methodsused are not normed for the same population as the client then the results are invalid for the intended forensic referral issue. Why? Because a client may not understand some of the evaluationtasks or may assume words have different meanings, effectively skewing test results. The structure of the clinical interview influences the forensic-relevant outcomes . Prior to any clinical interview, it is important to become informed of any cultural or language barriers and be prepared with paperwork appropriate for that individual . Cross-cultural competence mustextend from an assessment of personal presentation to individual testing items and recommendations. Ethically and professionally, a forensic examiner must address all potential issues that might reasonably contribute to cultural discrepancies in their evaluation and testimony.
Professional, Ethical and Legal Imperatives for Forensic Mental Health Practice
Mental health practitioners have primary resources for addressing factors related to forensic practice. Collectively, these resources do not provide sufficient guidance for all the types of issues that a clinical mental health practitioner is likely to experience in the course of their forensic practice. In the reality of forensic private practice, most mental health practitioners will need to consult other professional resources (e.g., American Psychology-Law Society or American Board of Forensic Psychology practice guidelines). It is strongly recommended that mental health professionals search for any professional-ethical codes that are relevant (e.g., child custody, pastoral counseling, rural mental health, etc.) to areas they may be working forensically. The list of professional and ethical issues that a mental health counselor is expected to confront require substantial preparation. For example, the types of evidentiary standards used in courts will vary depending on the state in which a mental health counselor may be practicing (e.g., Daubert versus Frye Standard). In addition, qualification as an expert to the court under Rule 702 of the Federal Rules of Evidence mandates that in federal cases the Court mustfind that "scientific, technical or other specialized knowledge will assist the trier of fact to understand theevidence or to determine a fact in issue" in a particular case. The Court must also conclude that a particularmental health professional is "qualified as an expert by knowledge, skill, experience, training, or education" torender an opinion .
Mental health professionals may also elect to work in diverse specialty courts. Some of these courts include:
It is not uncommon for the forensic mental health professionals to work with a team of others such as medical staff, attorneys, correctional facility workers, therapists, etc. Forensic mental health professionals also work directly with clients and offenders so having the ability to build a rapport with people from ‘all walks of life’ will be most helpful.
For example, forensic mental health professionals have many duties which include a relationship with judges. One of the duties is to inform the judge, amongst others, about the nature and extent of their experience, training, credentials and qualifications. (SGFP 4.03). While collaborating with the probation officer’s limits of confidentiality must be upheld . For attorneys it is critical to understand the requirements of the lawyer’srole, while recognizing that their goals and professional methods are very different from the ethics and professional methods of a forensic mental health professionals. For attorneys, it is their job to advocate for their client. The position of the judge in the juvenile courtroom is traditionally that of an almost parental role, serving the interest of the state to ensure the best rehabilitative outcome for the juvenile .
Probation officers are often important in work with juveniles. They have great influence on both the disposition of the cases and the potential assignment to treatment programs or other rehabilitative services with or without incarceration. It is vital to understand the legal obligations one has to a probation officer and a client in regards to confidentiality and reporting. Ethical boundaries can assist in the maintaining ahealthy professional relationship.
Other mental health professionals include family practitioners, psychiatrists, school psychologists, marriage and family therapists. Other professionals will often have information that can assist forensic issuesused incrafting case conceptualizations. Respecting others’ professional opinions, even when you may disagree with them, is an important step in developing collegial relations with individuals you may need to contact again in the future.The type of relationships with other professionals must be clearly delineated as to roles and confidentiality. Professionals play multiple roles in the court, including: expert witness, lay witness, fact witness, consultation professional, etc. These roles should be clearly defined and limitations of their role must be announced to all associated parties to avoid ethical dilemmas .
A Forensic Mental Health Private Practice Case Vignette
Case of Dr. Sinkorswim
Dr. Sinkorswim received her doctorate in counselor education where she majored in career counseling. She was never educated or trained clinically. She is a full-time faculty member in a graduate counseling program. Over the years, her teaching load has mostly included career, multicultural, and research courses. About two years ago, she decided to pursue a solo practice as a Licensed Professional Counselor (LPC). She was able to become eligible to complete the practicum hours required to become a licensed professional counselor. One of her former students has been mandated to complete alcohol-substance abuse screening after failing a random drug test at work. On the same day, she received a DUI resulting in her licensed being suspended. The former student works as a counselor in a group home and is required to transport youth as part of her regular job duties. Since her DUI, the former student has been temporarily suspended pending her fulfilling mandatory alcohol-drug screening and counseling requirements of the employer. For insurance and state group home licensure purposes, the employer must receive an evaluation from the service provider. The mandatory report must indicate that the employee has been evaluated and completed a minimum of five counseling sessions. Dr. Sinkorswim has never performed this type of evaluation or provided the required counseling services in this area. Dr. Sinkorswim has elected to use the Substance Abuse Subtle Screening Inventory (SASSI) to screen for alcohol-substance abuse. She is also providing the counseling services to this client. About two years ago, she completed a two-credit on-line course on using the SASSI and has a book from 1997 on alcohol counseling.
The State through the DMV has issued the client a restricted license.A condition of the reinstatement of full driving privileges is contingent upon her successfully completing alcohol-drug screening and related counseling. A report (per law) must be sent to her probation officer who presents her case to the presiding judge. During the fourth of the five mandatory sessions, the former student (now client) reveals to Dr. Sinkorswim that she is a lesbian. Her and a partner have decided to adopt a 14-year-old girl. The adoption agency as per law requires that the former student (now client) receive an evaluation that indicates to the court that she is free of any behavioral or mental disorder that would significantly interfere with her ability to parent the child being proposed for adoption. Dr. Sinkorswim was asked and has agreed to conduct the adoption evaluation using the Myers-Briggs Type Indicator instrument. Dr. Sinkorswim has not revealed to the client that she is opposed to LGBTQIA’s adopting children. Her opposition in this case is even stronger since the child involved is a girl. She has also no disclosed to the client(s) that she has no education or training in the area of adoption.
An ethical decision making is used to illustrate how one might approach the case of Dr. Sinkorswim. There are several options for ethical decision making. Bush, Connell, & Denney (2006)  have an 8-Step Ethical Decision-Making Model that can be applied here.
Identify the Problem or Dilemma
Shewas asked to evaluate a former student as a client in an area where Dr. Sinkorswim has no education or formal training. She has address one referral question by using an assessment tool where she has no experience and using an instrument that has a paucity of empirical evidence to substantiate it’s use. A question may be raised as to whether or not the assessment tools used were crafted for use for forensic purposes (i.e., normed). As a result, the findings, treatment and recommendations may be inappropriate for the referral issues involved here. Does she have the education and training necessary to work in the area of adoption?
Consider the Context & Setting
Dr. Sinkerorswim is in a solo practice with no other mental health provider available to consult with in this type of case. Nor is she able to perform the necessary drug screens and monitoring whose results must be contained in her reports to the employer as well as the State as it relates to the DUI.
Ethical & Legal Resources
The following professional and ethical resources may be considered:
Boundaries of Competence
Gaining and Maintaining Competence
Personal Beliefs & Values
Dr. Sinkorswim’s beliefs & values are not seemingly consistent with those contained in the resources examined or at least she has not informed the client of them. She may assume that the lesbians may not be able to appropriately parent and or not be able to model for this adopted female adolescent. She may believe that lesbian relationships are not compatible for adoptions.
Choose & Implement a Course of Action
Dr. Sinkorswim elects the 4thoption & refers the client to a colleague she met at an ethics training workshop. Dr. Sinkorswim facilitates the referral.
Assess the Outcome & Implement Changes as Needed
The client in this case was able to obtain the most appropriate assessment and treatment services.
Conclusions and Implications for Forensic Mental Health Practice, Research, and Trainings
Mental health practitioners(e.g., psychologists or psychiatrists) seeking to develop a specialty in the forensic area must acquire a collection of theoretical and practical knowledge base for this professional arena. This is an excellent time to pursue practice in this area. Being involved in any successful private practice requires a considerable amount of planning and work to sustain it over time. A forensic practice is perhaps more challenging due to the need to remain current for court testimony and the cross-disciplinary interactions.
More resources are needed to guide potential and current forensic mental health professionals. Forensic mental health training in APA and Non-APA programs is disappointingly inadequate resource for preparing students in this area. Current ethical codes for various professional organizations (e.g., APA or ACA) do not provide adequate language and guidance for the educators to use as basis for needed knowledge. Few programs have courses (e.g., risk assessment, forensic assessment, or mental health case law) specifically designed to properly prepare students in this area. Usually the legal issues are added in with ethics courses, which also reduces coverage. Not all faculty members have expertise in the forensic area, so students may need to search for a qualified mentor. Nor is there a core of faculty involved in publishing or presenting at national conferences devoted to forensic issues. Clinical students are forced to seek training opportunities outside of counseling (e.g., American Academy Forensic Psychology, Forensic Mental Health Association, Society of Police and Criminal Psychology). These and other organizations provide forensic training experiences but leave students to decide on their own how to integrate these experiences in with their regular mental health training.
Citation: Johnson R (2017) Professional Service Architecture of a Forensic Psychological Private Practice for Clinical Mental Health Care Providers: Cross-cultural and ethical-legal challenges. J Psychiatry Cogn Behav 2016: J103.