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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.
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.
FLORIDA:
The appeal of the case of Broyles
v. Reilly (FL 2nd 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 2nd 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 5th
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
References:
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
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