THIRD PARTY OBSERVERS (TPO)

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THIRD PARTY OBSERVERS:

The presence of third party observers in psychological evaluations, assessment or testing is a controversial topic. It has generated both empirical research, position papers by national organizations and has been the subject of legal decisions. The goal of this website is to educate the reader about some of the issues involved and direct the reader to resources for position papers, legal decisions and other discussions regarding psychological testing done with observers present, or that conducted under the conditions of video, audio or other recording.

U.S. SUPREME COURT:

The Supreme Court, in Estelle v. Smith (451 U.S. 454, 470 n. 14, 1981)indicated that the physical presence of an attorney during an evaluation "could contribute little and might seriously disrupt the examination."

APA STANDARDS FOR EDUCATIONAL AND PSYCHOLOGICAL TESTING:

American Psychological Association Standards for Educational and Psychological Testing are also relevant since they generally indicate that the psychologist must demonstrate the validity of testing done in other than an standardized manner. This is very problematic since there are published studies which show both facillitative and inhibitory effects on different types of tasks. Such effects have been demonstrated with observers, audio-taping, and video recording. Observing or taping without examinee knowledge is also problematic from ethical, privacy and legal standpoints.

American Psychological Association (2007) Brief Summary:

APA Paper on Third Party Observers (TPO) (2007) indicated that the paper was not proscriptive, but essentially intended to guide psychologists. A fundamental principle seems to center around psychologists responsibility to ensure the reliability and validity of their methods. It reviews and recognizes observation by third parties, even recording or videotaping changes human behavior, self disclosure and alters test results and specifically notes that there are a number of studies indicating research indicating results can be altered to a degree than normal interpretive strategies would not be appropriate. It goes on to indicate that there may be some circumstances, typically even recognized by test publishers, where TPO may facilitate such validity, such as when there may be serious cultural or language barriers. While it gives psychologists some guidance in using judgment, it clearly indicates the psychologist must inform the test-taker as well as the report-reader that to the degree there are known and unknown impact of various forms of recording or observation, there are likely to be limitations or alterations in the known reliability and validity of the evaluation. It cites psychologist’s ethical obligations to try to minimize impact, provide for test security and to discuss the limitations inherent in TPO evaluations.

Link: Canadian Psychological Association Policy on Third Party Observers, 2009 1-3

American Academy of Clinical Psychology Position Summary:

The American Academy of Clinical Neuropsychology (AACN) published a Policy Statement on Third Party Observers (2001). It distinguishes between two types of observers - involved and uninvolved parties. The context of the policy focuses on medicolegal contexts, but not criminal contexts. The policy precludes involved third parties to be physically or electronically present except under specific circumstances. This involves circumstances where, for example, the presence of a parent may be beneficial in getting the cooperation of a toddler and allows some judgment to be exercised by the neuropsychologist when potentially beneficial and disruptive effects might be expected, while noting research and ethical problems which arise. After reviewing the possible disruptive effects of observation and recording on the reliability and validity of interpretations and test results (and consistent with the later APA paper noted above) the AACN paper concludes "As always, it remains incumbent upon the clinical neuropsychologist to make known any limitation regarding the reliability and validity of their conclusions and other professional opinions."

National Academy of Neuropsychology (NAN) Position Paper

At the time of the AACN paper, NAN had produced a similar position paper outlining the ethical concerns about recording or third party observation in neuropsychological assessments (2000) which also cited concerns about impact on test results. Click for NAN TPO Position Paper

FLORIDA:

The appeal of the case of Broyles v. Reilly (FL 2^nd DCA, 1997) resulted in opinion that in Florida a general objection to a third party observer is insufficient, but a denial of the presence of a third party observer must be demonstrated by specific factors in the case. Judges appear to have discretion, and have at times precluded observation on grounds such an evaluation could not be performed without an ethical psychologist indicating some compromise to the reliability and validity of the interpretations.

The appeal of the case of Broyles v. Reilly (FL 2^nd DCA, 1997) resulted in opinion that in Florida a general objection to a third party observer is insufficient, but a denial of the presence of a third party observer must be demonstrated by specific factors in the case. Judges appear to have discretion, and have at times precluded observation on grounds such an evaluation could not be performed without an ethical psychologist indicating some compromise to the reliability and validity of the interpretations.

Howe, Rice, and Hoese (2007) reviewed third party observer issues for psychologists in Florida with a primary focus on neuropsychological evaluations. Concerns about reliability and validity were noted to be a number of factors. They noted social facilitation effects may alter test performance in that the presence of observer enhances performance on some overlearned or simple types of tasks and worse performance on novel or more difficult tasks.

The above authors cited research support that even unobtrusive observers or simple recording effects and alters neuropsychological test performance, citing effect sizes of 1 to 1.5 Standard Deviations on tests of attention, memory, learning, and verbal fluency. Effects of this size are large enough, on a memory test to shift performance into different categories and cause interpretation errors. Additional concerns about psychologists ethical duties to maintain test security are outlined.

The authors above note Florida case law currently does not differentiate between medical and psychological examinations. They cite that 2nd DCA precedent which established that the party seeking to prevent the TPO must 1) present case-specific facts why this would be disruptive and 2) that no other qualified provider in the area would be willing to conduct the examination with TPO. The authors advocated for the position that the burden of proof that TPO would not be disruptive should be placed on the party seeking the TPO.

In Birkhold vs Grooms, the Florida DCA upheld a lower court opinion that TPO would be excluded. In this case it was argued there was no qualified provider to conduct the examination who would not be ethically required to state there were limitations to the reliability and validity of interpretations. However, this set no legal precedent as the DCA did not issue written opinion.

Howe, Rice and Hoese (2007) documented the Florida Psychological Association’s involvement in signing an Amicus Curiae brief written by the Group Protecting the Integrity of Psychological Examinations (G-PIPE) in Berman vs. Flocar (Florida 5^th DCA, 2006). This was written in support of excluding TPO in psychological examinations. The District Court of Appeals in that case upheld the lower courts decision to bar TPO, but did not issue a written opinion. Click here for Berman Amicus Brief.

Studies since the time of the Berman brief continue to show complex interactions. Frontal lobe injuries and executive functions are often at issue in brain injury cases. A study demonstrated an interaction between anxiety and observation resulting in reduced performance on tests of executive function under observation conditions (Horwitz and McAffrey, 2008). This adds to the literature that even the presence of a tape recorder can result in artificial reduction of memory test scores (Constantinou M, Ashendorf L, McCaffrey RJ, 2002), TPO comprimises evaluation of head injury (Lynch, 2005), and that TPO compromises the credibility of expert testimony (Barth, 2007). Since that time, other state neuropsychological associations have also held positions that TPO creates validity problems in assessment and should be avoided (e.g. Colorado Neuropsychological Society, 2008).

Howe and McAffrey (2010) published an article which outlines major objections to third party observation and recording, noting that there are many false arguments such as minor contradictions in professional position papers which distract from the fact that to preserve the science, accuracy and validity of the measures, observation, or recording of any kind should be avoided. An updated list of references and citations is contained in that article.

Test publishers have become proactively involved, publishing positions protecting trade secrets and their fair use of developed tests, since recording and dissemination would undermine the value of their product. Many test publishers specifically require psychologists purchasing tests that they will not allow reproduction in any form, and have issued statements that psychologists have contractual obligations under this provision to object to third party recording or observation in legal proceedings. For further discussion of other legal and ethical considerations refer to Morel, 2009 and McSweeney et. al, 1998.

References:

American Academy of Clinical Neuropsychology (2001). Policy statement on the presence of third party observers in neuropsychological assessments. The Clinical Neuropsychologist,
15, 433-439.

Barth RJ: Observation compromises the credibility of an evaluation. The Guides Newsletter 2007 , July/August:1-9.

Colorado Neuropsychological Society (2008). Official position statement of the Colorado Neuropsychological Society regarding third party observers and neuropsychological
evaluations.

Constantinou M, Ashendorf L, McCaffrey R.J. When the third party observer of a neuropsychological evaluation is an audio-recorder. Clin Neuropsychol. 2002 Aug;16(3):407-12.

Horwitz, J.E. and McAffrey, R.J. Effects of a third party observer and anxiety on tests of executive function. Archives of Clinical Neuropsychology Volume 23, Issue 4, July 2008, Pages 409-417.

Howe, L. L. S. (2006). Amicus brief filed in the Fifth District Court of Appeal, Florida 5D06-2053, by the Group Protecting the Integrity of Psychological Examinations.

Howe, L, and McAffrey, R.J. Third party observation in neuropsychological evaluation: An update on the literature, practical advice for practitioners, and future directions. The Clinical Neuropsychologist, 24: 518-537, 2010

Howe, L., Rice, W. J. and Hoese, V. Psychological Ethics and Third Party Observers (TPO): We’ve Observed their Effect and Now Need to Act. Florida Psychologist, Summer 2007.

Lynch, J. K. (2005). Effect of a third party observer on neuropsychological test performance following closed head injury. Journal of Forensic Neuropsychology, 4, 17-25.

McSweeny J.A., Becker, B.C., Naugle, R.I., Snow, W.G., Binder, L.M., & Thompson, L.K. Ethical issues related to the presence of third party pbservers in clinical neuropsychological evaluations The Clinical Neuropsychologist, 1744-4144, Volume 12 (4), 1998, Pages 552 - 559

Morel, K. M. (2009). Test security in medicolegal cases: Proposed guidelines for attorneys utilizing neuropsychology practice. Archives of Clinical Neuropsychology,
24(7), 635-646.

National Academy of Neuropsychology Policy and Planning Committee (2000). Presence of third party observers during neuropsychological testing: Official statement of the
National Academy of Neuropsychology. Archives of Clinical Neuropsychology, 15, 379-380.

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