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March 25, 2021 ESQ

March 2021 Best of the ESQ

Ron Nelson

This month's Best of the ESQ features a question regarding psychological testing and discovery. 

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Re: Psychological Testing ­– Discoverey

Good afternoon listmates:

I hope you are having a good day!  I am reaching out to you because I need help with  formulating questions and requesting certain documents from a psychologist who has utilized the SASSI-4 assessments (Substance Abuse Subtle Screening Inventory-Fourth Edition) and other assessments to make legal conclusions about my client as she seeks the return of her children in a dependency case in Georgia.  I am concerned about the reliability of these assessments and the qualifications of the psychologist.  Because this is a case of first impression for me, I am requesting assistance with any sample interrogatories and/or request for the production of documents for mental health professionals.  If you have discovery requests specifically concerning the SASSI-4, Sexual Adjustment Inventory (SAI), Parenting Stress Index-Fourth Edition (PSI-4), and/or the Weschsler Abbreviated Scale of Intelligence-Second Edition (WASI-II), I would greatly appreciate it.

Even if you do not have discovery requests/rogs in the above specific areas, I would appreciate any sample rogs/req for documents for experts in the area of mental health.  Thank you very much!

Kedra M. Gotel
Atlanta, Georgia

Answer A:

I would start by asking some questions about the scientific validity of the tests.  Can they cite scholarly articles, studies indicating the results are accurate etc.  I presume that a psychiatrist that uses a test has verified its validity.  I would also ask specifically what the scale of intelligence has to do with anything.  We don't take kids away from "stupid" parents.

I have never actually heard of any of these tests so I would be interested in what you find out about their scientific basis.

Bethia D. Kalenak
Cody, Wyoming

Answer B:

I'll share three things:

(1) A sample request for documents from a therapist (which could easily be adapted for use with someone who has conducted a psychological evaluation or child custody evaluation (See below)  Generally, in child custody evaluations, how the report and file will be treated should be addressed prior to the evaluation so as to avoid surprises.  The rules about discovery of evaluator report and files differ across jurisdictions.  At one end of the continuum is the idea that everything is discoverable.  At the other end is the idea that the report is shared with counsel but not with the parties except for the recommendations section.  This is a controversial topic among evaluators and attorneys.  Attorneys generally raise due process concerns and those (including courts and judges) who places restrictions on access to these materials generally point to reducing conflict, a belief evaluators will be more forthright in the opinions (e.g., protections for evaluators), and protecting children.

(2) You need to find a consultant to help you with a cross-examination of an expert who has used certain measures.  For example, the SASSI-4 is a self-report measure about substance use.  The "subtle" aspects of the scale concern behaviors that do not directly involve admission of substance use but are often associated with substance abuse.  The Parenting Stress Index - 4th Edition is a measure designed to identify stresses associated with parenting children under the theory that more stressed parents are more likely to abuse or treat their children poorly.  Again, it is a self-report measure that includes a defensive responding measure to address potential challenges to the validity of the findings (such as socially desirable presentation, impression management or self-deception [believing you are better than you really are]).  I am not familiar with the Sexual Adjustment Inventory but it is clearly another self-report measure.  The intelligence measure should not be controversial.

(3) An article, "Cross Examining Experts in Child Custody: The Necessary Theories and Models ... with Instructions," will appear in the April 2021 issue of the Journal of the American Academy of Matrimonial Lawyers.  I was joined in writing this article by Jonathan Gould and Alyssa Levine.  This article addresses 4 topics: (a)  How to develop your theory of the case; (b) The modern multi-method child custody evaluation model; (c) three approaches to critiquing and reviewing CCEs; and (d) the various models of cross-examination attorney that may choose to use in their cases.  Yep, this is a teaser!

Request for Documents from Treating MHP

1.    Any and all completed Intake/Registration forms documenting demographic information about the patient and the patient’s guardian(s) or custodial parents and information necessary for billing of services;

2.    Information related to the patient/guardian’s signed Informed Consent Agreement and their agreement regarding the Health Information Portability and Accountability Act (HIPAA);

3.    Information regarding the billing of services to any third-party insurance policy (name of policy, insurance company, and insurance number) and any payments made by the insurance company (including the date and amount billed as well as the date and amount of any payment);

4.    Information regarding the billing of services to any individual and any payments made by that individual or any other individual (including the date and amount billed as well as the date and amount of any payments);

5.    Notes, documents, and/or detailed computer entries reflecting the patient’s problems or symptoms and any and all diagnoses given to the Child #1, as well as any other professional consulted in connection with the provision of any medical, psychological, or psychiatric diagnosis or diagnoses;

6.    Notes, documents, and/or detailed computer entries reflecting the following for each therapeutic contact or session with Child #1: (a) date of session; (b) length of session; (c) who was present for the session and the involvement of each person present; (d) content of session including issues raised and interventions on these issues; and (e) how these processes related to the treatment goals for the process;

7.    Notes, documents and/or detailed computer entries regarding the treatment plan for Child #1, including any and all identified treatment goals and objectives, as well as planned interventions for achieving treatment goals and objectives;

8.    Any correspondence by letter, email, or text messages with the patient, the patient’s guardian or parent, regarding Child #1, including but not limited to collecting information necessary to provide treatment or to coordinate treatment with other aspects of the child’s life at home, at school, or in the community;

9.    Copies of all Releases signed by the guardian or parent allowing information about Child #1 to be shared with other professionals, entities, or non-family persons, including the identity of this person(s)/entity and the date and content of the information that was shared; and,

10.   Efforts to coordinate treatment with both guardians/custodial parents, including dates of contact, the content of these contacts, and notes related to these contacts.

Milfred D. Dale, PhD, JD
Topeka, Kansas

Answer C:

FWIW, those are pertinent questions. If opposing counsel is inexperienced or of unclear competence, though, remember that the more specific your discovery inquiries, the more you are tipping him/her off to your cross examination, vs. just asking your own expert how to best call into question what the other side's psychologist has done....

Douglas Sanderson
Fairfax, Virginia

Answer D:

The ABA has a good book on this subject.

Lorri Seibert Woodacre
Wellesley, Massachusetts