Informed Consent, except when (1) testing is mandated by law or governmental regulations; (2) informed consent is implied because testing is conducted as a routine educational, institutional, or organizational activity (e.g., when participants voluntarily agree to assessment when applying for a job); or (3) one purpose of the testing is to evaluate decisional capacity. Informed consent includes an explanation of the nature and purpose of the assessment, fees, involvement of third parties, and limits of confidentiality and sufficient opportunity for the client/patient to ask questions and receive answers.
To comply with this standard, psychologists must obtain and document, with few exceptions, written or oral consent in the manner set forth in Standard 3.10, Informed Consent. Psychologists must provide individuals who will be assessed and, when appropriate, their legal representative a clear explanation of the nature and purpose of the assessment, fees, involvement of third parties, and the limits of confidentiality. Psychologists should also be attuned to consent vulnerabilities related to transient disorders, such as depression (Ghormley, Basso, Candlis, & Combs, 2011), and develop appropriate measures to ensure consent comprehension.
Core Elements of Informed Consent in Assessment
Nature of the Assessment
The nature of an assessment refers to (a) the general category of the assessment (e.g., personality, psychopathology, competency, parenting skills, neuropsychological abilities and deficits, employment skills, developmental disabilities), (b) procedures and testing format (e.g., oral interviews, written self-report checklists, behavioral observation, skills assessment), and (c) duration of the assessment (e.g., hours or multiple assessments).
Purpose of the Assessment
The purpose of the assessment refers to its potential use, for example, in employment decisions, school placement, custody decisions, disability benefits, treatment decisions, and plans for or evaluation of rehabilitation of criminal offenders.
Discussion of fees must include the cost of the assessment and payment schedule and should be consistent with requirements of Standard 6.04, Fees and Financial Arrangements. When applicable and to the extent feasible, psychologists must also discuss with relevant parties the extent to which their services will be covered by the individual’s health plan, school district, employer, or others (see Standard 6.04a and d, Fees and Financial Arrangements).
Involvement of third parties refers to other individuals (e.g., legal guardians), HMOs, employers, organizations, or legal or other governing authorities that have requested the assessment and to whom the results of the assessments will be provided. Psychologists should be familiar with ethical standards, state law, and federal regulations relevant to the appropriate role of third parties and the release and documentation of release of such information to others (see Standard 4.05, Disclosures). Psychologists asked to evaluate a child by one parent should clarify custody issues to determine if another parent must give permission.
Informed consent to assessments must provide a clear explanation of the extent and limits of confidentiality, including (a) when the psychologist must comply with reporting requirements such as mandated child abuse reporting or duty-to-warn laws and (b) in the case of assessments involving minors, guardian access to records (see discussion of parental access involving HIPAA, FERPA, and other regulations in Standards 3.10, Informed Consent; 4.01, Maintaining Confidentiality; and 4.02, Discussing the Limits of Confidentiality). Psychologists who administer assessments over the Internet must inform clients/patients, research participants, or others about the procedures that will be used to protect confidentiality and the threats to confidentiality unique to this form of electronic transmission of information (see also Standard 4.02c, Discussing the Limits of Confidentiality).
Implications of HIPAA for Confidentiality-Relevant Information
The HIPAA regulation most relevant to informed consent in assessments is the Notice of Privacy Practices. At the beginning of the professional relationship, covered entities must provide clients/patients a written document detailing routine uses and disclosures of PHI and the individual’s rights and the covered entities’ legal duties with respect to PHI (45 CFR 164.520). Psychologists conducting assessments should also be familiar with HIPAA-compliant authorization forms for use and release of PHI and HIPAA requirements for Accounting of Disclosures. These regulations are described in greater detail in the section “A Word About HIPAA” in the Preface of this book and in discussions of Standard 3.10, Informed Consent, in Chapter 6; Standards 4.01, Maintaining Confidentiality, and 4.05, Disclosures, in Chapter 7; Standard 6.01, Documentation of Professional and Scientific Work and Maintenance of Records, in Chapter 9; and Standard 9.04, Release of Test Data, in this chapter.
Dispensing With Informed Consent
Under Standard 9.03a, informed consent may be waived when consent is implied because testing is conducted as (a) a routine educational activity, such as end-of-term reading or math achievement testing in elementary and high schools; (b) regular institutional activities, such as student and teaching evaluations in academic institutions or consumer satisfaction questionnaires in hospitals or social service agencies; or (c) organizational activity, such as when individuals voluntarily agree to preemployment testing when applying for a job.
Standard 9.03a permits psychologists to dispense with informed consent in assessment when testing is mandated by law or other governing legal authority or when one purpose of testing is to determine the capacity of the individual to give consent. Ethical steps that must be taken in these contexts are discussed next under Standard 9.03b (Moberg & Kniele, 2006).
(b) Psychologists inform persons with questionable capacity to consent or for whom testing is mandated by law or governmental regulations about the nature and purpose of the proposed assessment services, using language that is reasonably understandable to the person being assessed.
Under Standards 3.10b, Informed Consent, and 9.03a, Informed Consent in Assessments, informed consent in assessment is not required when an individual has been determined to be legally incapable of giving informed consent, when testing is mandated by law or other governing legal authority, or when one purpose of testing is to determine consent capacity. These waivers reflect the fact that the term consent refers to a person’s legal status to make autonomous decisions based on age, mental capacity, or the legal decision under consideration. Consistent with the moral value of respect for the dignity and worth of all persons articulated in Principle E: Respect for People’s Rights and Dignity, under Standard 9.03c, psychologists must provide all individuals irrespective of their legal status appropriate explanations of the nature and purpose of the proposed assessment. Readers may also refer to the Hot Topic in Chapter 6, titled “Goodness-of-Fit Ethics for Informed Consent Involving Adults With Impaired Decisional Capacity.”
Standard 9.03a often applies in situations where assessment is requested by parents of children younger than age 18 years or family members of adults with suspected cognitive impairments. In some contexts the affirmative agreement of the testee is not required. In these situations, the psychologist must provide information in a language and at a language level that is reasonably understandable to the child or adult being assessed. When both guardian permission and child or cognitively impaired adult assent are sought, psychologists working with populations for whom English is not a first language should be alert to situations in which prospective clients/patients and their legal guardians may have different language preferences and proficiencies.
Psychologists conducting forensic, military, or other assessments that have been legally mandated should provide notification of purpose, which explains to the person being tested the nature and purpose of the testing, who has requested the testing, and who will receive copies of the report. If the examinee is unwilling to proceed following a thorough explanation, according to the Specialty Guidelines for Forensic Psychologists, “The forensic practitioner may attempt to conduct the examination, postpone the examination, advise the examinee to contact his or her attorney, or notify the retaining attorney about the examinee’s unwillingness to proceed” (AP-LS Committee on the Revision of the Specialty Guidelines for Forensic Psychologists, 2010). The APAIT provides a useful sample of a Forensic Informed Consent Contract developed by Jeffrey Younggren, Eric Harris, and Bruce Bennett (http://www.apait.org/apait/).
Defendants who are entering a plea of insanity may not be able to act on their Fifth Amendment right to silence and avoidance of self-incrimination. To avoid compromising the admissibility of a comprehensive forensic evaluation, Bush et al. (2006) suggest that psychologists first assess competency, then sanity, and separate the reports given to the court to provide the court the opportunity to first determine the competence question.
Informed Consent for the Assessment of Malingering
Malingering refers to the intentional production of false symptoms to attain an identifiable external benefit (Iverson, 2006; National Academy of Neuropsychology Policy and Planning Committee, 2000). Assessment of malingering is one of the most challenging tasks facing forensic psychologists (Kocsis, 2011). Some have argued that assessment of malingering is the number one priority of forensic assessment, preceding any professional conclusions in forensic evaluations (Brodsky & Galloway, 2003). Malingering can be manifested through intentional under- or overperformance during psychological assessment. Accurate assessment of malingering is ethically important because errors in diagnosis can impede justice when undetected in forensic procedures or obscure adequate treatment for psychopathology (Principle A: Beneficence and Nonmaleficence; Kocsis, 2011).
Some have questioned whether describing the purposes of tests for malingering during informed consent compromises the validity of the assessment or whether failing to include such information during informed consent violates testees’ autonomy rights (Principle E: Respect for People’s Rights and Dignity and Standard 9.03, Informed Consent in Assessments). Current standards of practice support communicating to testees during informed consent or notification of purpose that measures will be used to assess the examinee’s honesty and efforts to do well (Bush et al., 2006). Psychologists conducting assessments for Social Security Disability benefits should take extra steps to craft language and procedures that ensure testees understand that honesty and effort are required (Chafetz, 2010).
Research on Coached Malingering
A practical concern in the forensic assessment of defendants or plaintiffs is whether existing tests of malingering can detect over- or underexaggeration of symptoms when the examinee has been coached by individuals familiar with the tests (Jelicic, Cuenen, Peters, & Merckelbach, 2011). When researchers attempt to study the extent to which commonly used tests are vulnerable to coached faking, there is a risk that the information provided to research participants or disseminated through publication will be used to improve the success of coached malingers (Berry, Lamb, Wetter, Baier, & Widiger, 1994). Ben-Porath (1994) suggests that to protect against these risks, investigators can (a) coach research participants on items similar but not identical to those on the test under investigation, (b) provide only a brief synopsis of coaching instructions in published articles, and (c) release information on verbatim instructions only to those bound by the APA Ethics Code to protect the integrity of tests (see also Standard 9.11, Maintaining Test Security).
(c) Psychologists using the services of an interpreter obtain informed consent from the client/patient to use that interpreter, ensure that confidentiality of test results and test security are maintained, and include in their recommendations, reports, and diagnostic or evaluative statements, including forensic testimony, discussion of any limitations on the data obtained. (See also Standards 2.05, Delegation of Work to Others; 4.01, Maintaining Confidentiality; 9.01, Bases for Assessments; 9.06, Interpreting Assessment Results; and 9.07, Assessment by Unqualified Persons.)
Compliance with the consent requirements outlined in Standard 3.10 obligates psychologists to provide information in a language and at a language level that is reasonably understandable to the client/patient and, where applicable, his or her legally authorized representative. Psychologists may use the services of an interpreter when they do not possess the skills to obtain consent in the language in which the client/patient is proficient.
When delegating informed consent responsibilities to an interpreter, psychologists must ensure not only that the interpreter is competent in the consent-relevant language (see Standard 2.05, Delegation of Work to Others) but that the interpreter also understands and complies with procedures necessary to protect the confidentiality of test results and test security. An interpreter who revealed the identity of a client/patient or the nature of specific test items used during the assessment would place the psychologist who hired the interpreter in potential violation of this standard. Because test validity and reliability may be vulnerable to errors in interpretation, Standard 9.03c also requires that the involvement of the interpreter and any related limitations on the data obtained be clearly indicated and discussed in any assessment-based report, recommendation, diagnostic or evaluative statement, or forensic testimony.
Fisher, C. B. (20120904). Decoding the Ethics Code: A Practical Guide for Psychologists, 3rd Edition.