Originally published: . Volume 6, No. 5. Source pages: 12, 13.
There is more packed into the 206 page Intellectual Disability, Civil and Criminal Forensic Issues than you will likely find in much longer books. There are several reasons for this. The author, Dr. Michael Chafetz, has clearly been down in the trench for a while, and presents a clear, cogent, and very useable perspective on important issues in mediolegal assessment of intellectual disability (ID).
Chafetz offers readers a view that feels much like we are shadowing an expert forensic psychologist and hearing him think out loud, to talk to us honestly about the pluses and minuses of one direction compared to another, of what to watch for and what to be sure to consider.
Chafetz takes a topic mired in much human emotion and peels away the layers to expose best practices for those who want to make their decisions in concert with ethical standards, validity, and welfare of others. In honest prose and tight logic, he describes a thoughtful approach for those hoping to do competent and ethical work in the challenging area of forensic neuropsychology.
The text is structured and focused in to six lean chapters. While providing current research references and practical advice, the book is not weighted down––and so neither is the reader––with extras that do not add to the goal.
In the preface Chafetz notes his objective. “… this book examines the involvement of intellectually disabled examinees in the medicolegal assessment process through the rigorous lens of validity. It is a book about assessment and about how the finding from a valid forensic neuropsychological or psychological examination inform the referral question and the trier of fact when the examinee is low functioning.”
He begins with a review of public law history including key legal decisions in Chapter 1, “Introduction and History.” He includes changing terms and thinking about intellectual disability, and the perspective of neuropsychological and measurement science. A section on “Disability Versus Health Condition,” lays out the two sides of a philosophical and political debate and points out a quandary. If intellectual disabilities are disabilities and not health conditions, they would have to be removed from the ICD. If they are health conditions, and not disabilities, this would contradict policy and initiatives already adopted by many governments. Chafetz describes the consensus approach and explains behavioral and neurological diagnoses in this context.
He shows how this relates to test accommodations and the courtroom, in two additional sections that help the reader understand the bridge between the science and the practical considerations in forensic applications. “The courtroom is not the place to skimp on analysis,” he tells the reader. “It is incumbent upon the neuropsychologist to go beyond the narrow constructs frequently seen in court,” and describes instances where examiners fell short, information readers will greatly appreciate.
Chafetz goes to the heart of what the forensic examiner is attempting to provide, in Chapter 2,“Through the Lens of Validity.” Considering that everything a psychologist does should be through this lens, it still is wise for the author to bring this idea to the front of the discussion, since it seems frequently lost in the trees. Chaftez describes how many still rely on their training when it comes to validity: “Testing conditions were adequate and the results were thought to be valid.” But he writes, “If a psychologist’s training did not include forensic activities, the psychologist may not be aware of the fundamental failing of these assertions if the validity of the examination itself has not been assessed.”
He explains that research has shown that psychologists can not detect malingering beyond chance levels even when the psychologist was confident that he or she could do so.
Next he defines malingering and the natural human tendency to respond negatively. He lists other type of noncredible behavior that can arise in forensic work. In a section on “Base-Rate of Malingering in Medicolegal Work,” Chafetz explains the growing data on malingering and moves the discussion to the issue of base-rates in low IO examinees, a particular issue in medicolegal assessment of disability and in capital cases.
In these sections, Chafetz digs down to the specifics in tests data, individual and group findings, and how to think about results in a particular case. He provides both sides of the debate, including statistical issues of specificity and sensitivity rates. Next he reviews how comordibity and other concerns, such as language, may impact the results.
In two sections he presents essential information that forensic examiners will need: “Separating Mild from Moderate-Severe Cases,” and “Accounting for Hidden Motivation.”
He cautions that it is important to keep in mind that “the arguments of true IQ levels in Atkins capital cases typically occur in a ‘challenge’ range when the IQ is in the low 70s down through the 60s.” He discusses detailed aspects of this issue, the research on both sides of the question, various tests and procedures, and results. And, he shows how motivation and IQ level interact in results of validity testing outcomes. He provides practical advice in sections on accommodating the impaired person, using appropriate cut-off scores and tests, and using tests validated for low IQ individuals.
Chaftez explains the development of guidelines for determining neurocognitive malingering and the first and second generation validity tests. He also describes the Social Security Administration (SSA) fraud guidelines and how these are “guidance and lore, particularly about psychiatric feigning.”
He concludes with sections on “Using the Validity Test to Help Decide Impairment,” and “Malingering is Ultimately a Probability Statement.”
In Chapter 3, “Social Security Disability,” Chafetz gives relevant history and defines the various Social Security Disability (SSD) programs and how these programs define various disabilities.
In “Nature and Ethics of the Consultation,” he points to the role of the psychological examiner in the SSD consultative examinations, and that the claimant is not the client or the patient of the psychologist. And he explains that only the DDS can make the disability determination. Chafetz also reviews role pressures for the psychologist and how those pressures from the SSA with can place the examiner in conflicting ethical positions and how SSA policies can impact the validity of the examiner’s results.
For “Capital Cases,” Chapter 4, Chafetz reviews forensic psychological and neuropsychological assessment in criminal and death penalty cases.
“In Atkins cases, the practical issues become intensely debated when the IQ levels are in the high 60s or low 70s, involving analyses of how the IQ is obtained or represented, whether corrections should be made, the nature and extent of adaptive functioning, and whether the characteristics of the defendant (and of the findings) satisfy the three prongs of the diagnosis of mental retardation (intellectual disability),” he writes. He reviews case law and the Daryl Atkins and William Jones case, and presents sections on each of the “Prongs.”
“Intellectual Deficits––The First Prong,” includes the specifics for this diagnosis, psychometric and technical information, and bases for various conclusions. He includes sections on “Hypothesizing Within the Error Term,” “A Perspective on Intellectual Functioning,” and hypothetical cases consistent with and not consistent with ID. He includes discussions of the Rohling Interpretive Method, the moving of the IQ with the Flynn Effect and the criticism of moving the IQ, and test-retest concerns.
In “Adaptive Functioning Deficits: The Second Prong,” Chafetz provides information about “Two Adaptive Behavior Assessment Systems.” He provides sections on avoiding bias in the assessment and practical issues in capital cases. “The assessment of adaptive behavior is about appreciating the adaptive behaviors typically displayed by the individual,” he writes, “not the adaptive abilities of the individual.” In this section he describes concerns with assessment of death row inmates and limitations, warns about confirmatory bias, and explains issues with retrospective evaluations.
For “Developmental Period––The Third Prong,” he discusses the practical issues with obtaining data on a person’s development and challenges for collecting this information.
Chapter 5 covers “Miranda Waiver Capacity,” an area relating to whether defendants can fully understand their rights. The issue he writes is, “… if statements made by an individual during custodial police interrogation are admissible at trial, and whether procedures that protect against self-incrimination under the Fifth Amendment are necessary.” In “Prevalence of Miranda Impairments,” he points out research supporting the concerns such as the finding that for those with mild intellectual disability, about 50 percent fail Miranda comprehension. He explains the impact of stress, suggestibility, and Miranda language in different states, on the assessment results.
In “Standardized Assessment of Miranda Abilities (SAMA)” Chafetz describes recent advancements and sections of the SAMA, subscales and applicable research. He analyzes a Miranda warning and discusses the neuropsychological perspective of the analysis, including receptive language and processing speed. Malingering, adaptive functioning, and tips for the evaluator are included.
In the final chapter, “Other Competencies/Capacities: Civil and Criminal,” Chapter 6, Chafetz looks at the issues of capacity (a clinical determination) and competency (a legal determination made by the trier of fact––judge or jury), and the relationship to various legal issues, including competency to stand trial.
He shows examples of the law for “Testamentary Capacity” in three states and reviews definitions, research, and practical issues as to how cognitive functioning is dealt with in various legal situations. “Neuropsychologists are in a good position to apply their knowledge to a testamentary capacity analysis,” he writes, and explains that in certain situations, a psychologist might be called upon to provide a postmortem analysis, called a neuropsychological autopsy.
He includes a discussion, “Treatment Consent Capacity,” for adults who are low functioning, and “Financial Capacity,” which occurs with older adults.
In “Criminal Capacities–Competencies,” Chafetz focuses on “Competency to Stand Trial (CST).” He reviews cases including the original Dusky v. United States and those cases that followed. He points out the CST domains, including the capacity to comprehend and appreciate the charges or allegations, the capacity to disclose to counsel pertinent facts, and capacity to understand the adversary nature of the proceedings, among others. He describes the Bennett criteria, CST measures, and practical concerns in implementing them.
Intellectual Disability is a must read. It is an in-the-trench, honest, and informative guide for complex and high-states neuropsychological and psychological testing. Those who venture into the forensic sphere intentionally will appreciate the logic and candor in this hands-on advice.
Those who find themselves dragged unwittingly into a courtroom will be thankful they know a little of an insider’s expertise and wisdom in this challenging area of psychological practice.
This article is part of a historical newspaper archive. Read the original issue for its original layout, photographs and graphics.