Clinical Assessment Practitioners: Should You Take that Forensic Referral?

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This is a post for the clinical folks who get that odd request to do a general assessment with vaguely forensic undertones. These are sometimes:

• “can you do a diagnostic evaluation on this child? the parents are in a custody dispute but this isn’t for that.”
• “can you do a personality assessment for this person who keeps crossing sexual boundaries? they were never arrested so it’s not a psychosexual”
• “are you able to say if this person is stable and give some violence prevention recommendations so they can come back to school?”

The list could literally go on and on. And the assumption is that you can just go ahead and do your normal clinical or neuropsychological deal and stay out of the legal fray entirely.

But that’s just not how Court works. Any information that comes into the courtroom is subject to the adversarial process. Which means they can haul you in and question you, or else throw out your report entirely. And as much as they can say at the beginning they’ll keep you out of it, that often very much depends on what you have to say.

Clinical and forensic assessment are like the different between O’ahu and Maui. They’re technically the same territory but you will have totally different experiences in each place. You have to navigate separately and intentionally to either, and it’s impossible to be in one place while you’re in the other. Similarly, you can be an amazing family doctor but there comes a time you need to refer to a geriatric specialist. So the first rule of whether you should take a forensic or pseudo forensic case is that if you have to ask, you should probably refer it out.

If you don’t refer it out, the first thing you need to do is clarify roles. You pretty much cannot have a treating relationship and then step into a forensic role. If you’re in a low saturation setting or it’s not really a forensic question, then there might be some loopholes to this. Maybe. Consult, move ahead cautiously.

If you’re going to step into forensics from clinical practice, you have to understand how profoundly different these worlds are. There is almost no leeway to offer recommendations for someone you didn’t examine. That language even – examining someone – it’s not very clinical in nature.

Testing is another huge difference. People routinely use testing in clinical practice. I would go as far as to say that in my experience with forensic evaluation it’s the exception not the norm (but this depends very much on the kinds of cases one sees!). Probably roughly 10% of my practice, which is largely competency and criminal responsibility, involves testing. But if you do use testing, you don’t have the leeway you might in clinical realms to go “off label” or use it loosely to explore certain hypotheses. In forensic work, even our standardized tests are subject to scrutiny with the rules of evidence. So we don’t use it to test limits or even to really explore ideas, because once a result is in the record its something that may need to be pulled apart and argued about.

Another significant difference is length and focus. I’ve seen clinical folks look at a perfectly sound competency evaluation and conclude it was deficient because it’s so narrowly focused. Or because they used special ed records and didn’t do their own IQ testing. Or because they only used one testing measure. Or because the clinician focused more on records than on what the interviewee said. Clinical practice starts with self-report, and leans heavily into it. Forensic practice does that with collateral sources.

Probably the most common question I see from clinical folks contemplating these kinds of pseudo-forensic cases are, “how do I stay out of Court?”

Unequivocally, if that is your question, refer out.

The vast majority of referrals don’t end up in hearings. When they do, it’s less often because of something we did or did not do as clinicians. It’s often more bout what arguments rise to the surface legally. This is the playing field you’re entering. If you put on a uniform, you might get called in.

If you’re interested in a crash course on forensic work I’d suggest this reading before you ever say yes:

• Melton et al: Psychological Evaluations for the Court
• Rogers & Bender: Clinical Assessment of Malingering and Deception
• Forensic Specialty Guidelines
• The rules of your jurisdiction in the area you’re being asked about which are too vast and varied for me to possibly link to

This is a starting place, not an ending place.

If you proceed to a report, you must provide a foundation for anything that you conclude. You should separate the data you are relying on to form your opinions from the inferences you draw based on that data. You should typically stay focused on the question you are being asked, and those questions should be clear from a Court Order or some other guiding authority to make sure that you are not opening a can of worms unknowingly. The exception to this is around some aspects of diversity, which I argue bear elaboration from our field. That said, you have to know the rules to break them, so to speak, and so I don't advise starting out here if you don't have other forensic experience and training. 

This is just a toe in the water as you consider whether or not you are qualified or it’s a good idea to take on a pseudo-forensic case. Read, train, consult, tread carefully, and move slowly!