Tuesday, August 14, 2018

I just bought: 'Smart Plug, Lightstory Mini Wi-Fi Socket Outlet Works with Alexa $19 apply promo code 50JJ9HAH. via @amazon https://t.co/zvk1pCS504



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August 14, 2018 at 12:34PM
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Thursday, August 2, 2018

I just bought: The Fifty-Minute Hour: A Collection of True Psychoanalytic Tales (Fifty Minute Hour... via @amazon https://t.co/lTScnpFvcx



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August 02, 2018 at 09:55AM
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Sunday, March 25, 2018

men-the vulnerable gender https://t.co/Npm1IVSWQE https://t.co/bzOeppWbdF



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March 25, 2018 at 12:45PM
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Saturday, March 24, 2018

#MarchForOurLives liberals say that gun violence is a gun problem. Conservatives say it is a 'bad people' problem. I say it's a public health problem - it deserves public health solutions, like other health conditions https://t.co/Zboaki7OSR https://t.co/qQNInUaw2W



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March 24, 2018 at 01:29PM
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Saturday, March 10, 2018

great article on implicit bias https://t.co/Aa2wLOAuQT https://t.co/3OZtARBtAT



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March 10, 2018 at 03:06PM
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Sunday, July 9, 2017

I got 80% correct playing the Factitious Game at https://t.co/sf2BaDYlqX !



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July 09, 2017 at 03:11PM
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Saturday, July 8, 2017

HHS produces training video on patient access rights. See link and my summary here: https://t.co/UnVxzFr0tM



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July 08, 2017 at 10:53AM
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Wednesday, June 7, 2017

I voted in the 2017 Division and State, Provincial and Territorial Association Elections https://t.co/jpn1eAuQox



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June 07, 2017 at 09:34AM
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Saturday, April 29, 2017

You’re Too Focused on What You’re Focused On https://t.co/xuSLZ5KBw9



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April 29, 2017 at 04:52PM
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Tuesday, April 11, 2017

When Can HIPAA be Waived? @theHCCA https://t.co/ByGgTmr8RD



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April 11, 2017 at 10:39AM
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Sunday, March 5, 2017

added to the forensic psychology custom search - Cornell Law Library --> https://t.co/iqijYU85gv



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March 05, 2017 at 08:21AM
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Wednesday, January 25, 2017

new journal added to the custom search - Florida Bar Journal. https://t.co/iqijYU85gv



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January 25, 2017 at 10:17AM
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Tuesday, January 10, 2017

Bloodied, Bruised John Kerry Emerges Victorious At Kickboxing Tournament In Bangkok Prison https://t.co/WTvN3xSxEH via @theonion



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January 10, 2017 at 07:59PM
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Sunday, January 8, 2017

Online forensic journal search now includes 163 sources, none of which are indexed by APA's psycnet.… https://t.co/LJyrfynsNI



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January 08, 2017 at 10:35AM
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Saturday, October 8, 2016

Colo.-psychotherapist-patient privilege not waived when juvenile criminal def. wants case sent back to juv court. https://t.co/UnVxzFr0tM



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October 08, 2016 at 10:45AM
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Tuesday, October 4, 2016

Research shows that genetics and environment greatly influence mental illness. We should not blame the victims https://t.co/soq3eZ5XhG



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October 04, 2016 at 09:16AM
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Saturday, October 1, 2016

Confirmed by @APAPsychiatric-HIPAA regulates forensic psych evaluations. Will psychologists believe it? https://t.co/UnVxzFr0tM



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October 01, 2016 at 09:11AM
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Sunday, September 25, 2016

Whitehouse review of forensic evidence. Valid knowledge only gained via empirical testing of specific propositions. https://t.co/0xXxau9lN1



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September 25, 2016 at 10:54AM
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large study links 15 genes to depression https://t.co/Fa3fjShiW3 https://t.co/NNxquaOhGI https://t.co/5sFUzeJVbj



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September 25, 2016 at 08:36AM
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Wednesday, September 21, 2016

just posted 3 new articles. Scholars who give bad advice on HIPAA and subpoenas. https://t.co/R0DjnDzy67



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September 21, 2016 at 03:26PM
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new journal added to the forensic psych search engine - Current Psychiatry https://t.co/iqijYUpG83



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September 21, 2016 at 10:02AM
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Tuesday, September 20, 2016

here's the same information in a blog post https://t.co/UnVxzFr0tM



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September 20, 2016 at 08:01AM
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new HIPAA case-Father entitled to minor child’s records because HIPAA permits and state law requires access. https://t.co/NOwutRuoab



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September 20, 2016 at 07:40AM
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Saturday, September 17, 2016

my comments on a new 'coping with subpoenas' article - this time by @APAPsychiatric https://t.co/mnxdWqb0t5


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September 17, 2016 at 12:22PM
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I've added the Illinois Law Review to my online forensic psych search engine. Click here to search 159 journals https://t.co/iqijYU85gv


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September 17, 2016 at 08:21AM
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Thursday, September 15, 2016

I voted in the 2016 President-Elect Election https://t.co/QZPOGqx2GJ


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September 15, 2016 at 04:44PM
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FL workers comp law prohibits benefits for mental-only injuries. Are such laws permitted by the constitution? https://t.co/VFZkwSkyse


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September 15, 2016 at 10:35AM
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Thanks to This is How I Learn, now following me on Twitter! https://t.co/9VYveRQBml https://t.co/t2W4BH7zZP


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September 14, 2016 at 10:38PM
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Monday, September 12, 2016

Thanks to Jan Wachtel, now following me on Twitter! https://t.co/BAv1JVEOM7 https://t.co/t2W4BH7zZP


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September 12, 2016 at 07:28AM
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Saturday, September 10, 2016

OT - heroin overdoses affect our children, too.... https://t.co/FFYe4mcY6D


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September 10, 2016 at 05:13PM
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How to save $ on psychological evals? Fabricate the records! https://t.co/RdXeSOuRad https://t.co/RGtOj1QKIw


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September 10, 2016 at 01:42PM
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Thursday, September 8, 2016

Thanks to Monica Armer, now following me on Twitter! https://t.co/aRGYr3obsN https://t.co/t2W4BH7zZP


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September 08, 2016 at 03:56PM
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Thanks to SACAP, now following me on Twitter! https://t.co/xpkbTKFvh7 https://t.co/t2W4BH7zZP


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September 08, 2016 at 03:56PM
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I did NOT know this-Islamic law included forensic psychology! https://t.co/BfJ1LgqnJl https://t.co/4nj2lz3TBB


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September 08, 2016 at 01:34PM
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To heck with FL's ban on asking about guns. This psychiatrist asks all his patients https://t.co/LEecTSO4ZK


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September 08, 2016 at 01:30PM
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here's the wikipedia entry for that case- a landmark SCOTUS civil rights decision https://t.co/cQkKXigjQ5


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September 08, 2016 at 10:43AM
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Interesting story from the plaintiff in Donaldson v. O'Connor (1975), plus FL's lousy mental health services https://t.co/qGP0dXmmu2


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September 08, 2016 at 10:42AM
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Thanks to Diane Francis, now following me on Twitter! https://t.co/ULhE35La4w https://t.co/t2W4BH7zZP


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September 08, 2016 at 09:59AM
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I just signed up to the @expertisefinder network to be found by journalists: https://t.co/zkjbTO9pdF #journalism


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September 08, 2016 at 09:20AM
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Can YOUR dog sit still for 8 minutes? https://t.co/mzUPGWzbaw https://t.co/Ym8X3IiYPx


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September 08, 2016 at 09:15AM
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Wednesday, September 7, 2016

Thanks to Mindyra, now following me on Twitter! https://t.co/dVjV7325uA https://t.co/t2W4BH7zZP


from Twitter https://twitter.com/bruceborkosky

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September 07, 2016 at 04:42PM
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Starbucks - people making positive changes in the world https://t.co/1ZTOaaKYk4 https://t.co/vdPl3wxbkg


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September 07, 2016 at 01:45PM
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the indirect cross examination of an expert witness https://t.co/JHyaqxCil3 https://t.co/nhdOwTs05U


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September 07, 2016 at 01:26PM
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Another reason to become a NatReg- integrated healthcare training videos-https://t.co/Q916W0B8el @NatlRegister https://t.co/EJBTwzAFeD


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September 07, 2016 at 12:20PM
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When your patient asks you to certify them disabled, needing an "emotional support animal" https://t.co/3mcXdyoLBW https://t.co/ZfK0PWWjea


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September 07, 2016 at 10:31AM
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Several public radio stations have created a database of FL healthcare prices- check out prices, add yours to help! https://t.co/a290IyYAyh


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September 07, 2016 at 10:06AM
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Thanks to Josh, now following me on Twitter! https://t.co/2RQDdJZ2Mp https://t.co/t2W4BH7zZP


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September 07, 2016 at 02:45AM
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Tuesday, September 6, 2016

Many updated and new forms & publications https://t.co/d1qeMHcQPc. Improved security, now asks for your email, thx https://t.co/rXrTH4NCsh


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September 06, 2016 at 02:29PM
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Health insurance rates in FL to increase almost 20% from 2016. https://t.co/08iqvuhFiC https://t.co/xK1yA6Hz7N https://t.co/Y0p5UyMADj


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September 06, 2016 at 10:35AM
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Is it cruel to pepper spray mentally ill prisoners? https://t.co/AQrsAlfJ8k https://t.co/rqXiRooBcr https://t.co/hFM6FJDRa1


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September 06, 2016 at 10:28AM
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Monday, September 5, 2016

legal defenses against malpractice allegations https://t.co/3cCfi5FKey https://t.co/Gy025yhRSR


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September 05, 2016 at 06:49AM
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Sunday, September 4, 2016

It's not that easy for doctors when someone threatens suicide - in fact, it's a problem! https://t.co/GeXSP6f3VU https://t.co/xK1yA6Hz7N


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September 04, 2016 at 12:52PM
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It's not that easy for doctors when someone threatens suicide - in fact, it's a problem! https://t.co/GeXSP6f3VU https://t.co/xK1yA6Hz7N


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September 04, 2016 at 12:52PM
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It's not that easy for doctors when someone threatens suicide - in fact, it's a problem! https://t.co/GeXSP6f3VU https://t.co/xK1yA6Hz7N


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Sunday, November 17, 2013

a police fitness-for-duty case (not FL)

Koessel v Sublette County Sheriff’s Dept., 717 F.3d 736 (10th DCA 2013)

Sheriff’s Deputy Koessel suffered a stroke. After returning to work, he had a number of emotional/behavioral problems. He was sent to a neurologist for an FFD. Neurologist recommended a neuropsych eval. A psychologist found him unfit for regular duty, and recommended low-stress work, w/o regular contact with the public. He was subsequently terminated, as the Dept did not have any such positions. He sued the Dept, alleging ADA, contract, and section 1983 violations. Trial court found that his claim that he was able to perform the essential functions of his job (even with reasonable accommodation) failed, because he put forth no evidence contradicting the psychologist’s report. Summary judgment was granted for all 3 claims. He appealed; however, his claim failed because he had not presented evidence. The Dept stated that his impairments interfered with at least 3 essential job functions (1), preserving the peace at public gatherings, neighborhood disputes and family quarrels; (2) conferring with prosecutors and testifying in court; and (3), apprehending suspects. He did submit evidence that his performance on standard psychological tests was unchanged from his performance before his stroke, this evidence was insufficient to support his claim. The Court said, “even accepting this evidence in the light most favorable to Koessel, it only shows he was physically fit for his job, not that he could cope with high stress situations. Koessel introduced no evidence disputing Dr. Enright’s findings that he suffered lingering psychological deficits that would interfere with his ability to perform his job. … A psychologist’s report reaching the opposite conclusion to that of Dr. Enright might have created a sufficiently debatable question to send to a jury. But Koessel produced nothing to contradict Dr. Enright’s report." Further, the court found that he did “not explain or introduce evidence showing that the problems Dr. Enright focused on – fatigue, lightheadedness, and emotional disinhibition – would have been revealed by the psychological test. Thus, there is no support for his argument that the test results conflict with Dr. Enright conclusion.” Finally, the court opined that although he had been able to perform non-stressful duties, he had introduced no evidence that he had performed in emergencies or other tenants, stressful situations.

The court noted that an agency is required to make a reasonable effort to accommodate the disabled employee. The ADA requires at least two forms of accommodation 1-a modification of the particular job performed by the employee or 2- reassignment to another job that can be performed with or without the first type of accommodation. In addition, employees have the burden to request accommodation, unless the employer has foreclosed the interactive process through its policies or explicit actions. In this case, Koessel did not request the first type of accommodation. Although he argued that he was able to perform his duties without modification, “it is not the employer’s responsibility to anticipate the employees needs and affirmatively offer accommodation if the employer is otherwise open to such requests” in regard to reassignment, the court noted that “employers have a duty to reassign, but only when it is reasonable under the circumstances. Typically this means employers are only required to reassign employees to existing vacant positions. A position is vacant when a similarly situated, nondisabled employee would be able to apply for it." The employee bears the burden of identifying a specific vacant position to which he or she could reasonably be assigned. In this case, Koessel did not identify any positions to which he could have been reassigned.

Koessel also argued that the department did not specify exactly how he was unfit for duty or from what disability he suffered, depriving him of a meaningful opportunity to challenge his termination. Under Wyoming state law the employee must be given specific notice and give the employee a real and meaningful opportunity to respond to every charge or allegation that is being brought against them and which will be used as a cause for his termination. The Wyoming Supreme Court has equated this type of notice and hearing with due process. The court opined that the department’s notice that he was “not physically fit”, and was “being terminated for safety reasons and to prevent injury both to himself and to members of the public” was adequate. Further Castle had had an opportunity to receive the report, review it, and discuss it with his Sheriff. The psychological report describe his symptoms in detail and how they could interfere with his duties.

What this means for psychologists, employers, and/or attorneys
---If you are hired as the Plaintiff’s expert, you should address the specific limitations alleged in the original report.
---If you are the defense attorney, you should attempt to foreclose the plaintiff’s opportunity to present evidence addressing your expert’s findings
---In order for officers to understand and possibly dispute the reasons for their termination, a copy of the psychologist’s report may be required (in contrast to common practice – FFD reports are not provided to the employee). Employers would need to provide the report prior to litigation. Since it is likely that the employee has an independent right to a copy of his/her records, outside of litigation, both employer and employee should be informed of this right prior to initiating the evaluation.
--- In order to protect itself from litigation, the employer may wish to explain the result of the unfavorable report to the employee. The employer and psychologist should reach an agreement regarding this process and who will conduct it (if needed), prior to initiating the evaluation.
---It seems as though there might have been a lack of foundation for a finding of emotional disinhibition, when the test results were similar to his pre-employment testing. It also appears that the results were accepted without controversy. Did the plaintiff’s attorney fail to present evidence that would have impeached the psychologists findings? At the very least, that would seem to be a prudent course of action.
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Thursday, October 10, 2013

Refusing to release records - excuse #13

I'm surprised that I keep learning of new excuses for refusing to release records, but I do. We are now on excuse number 13.

Another attorney contacted me today about an intransigent psychologist who refused to release MMPI-2 scores. He had declined to put them in the report, so they existed only in the computer-generated-interpretation produced by Pearson. His reasoning was that the CGI, including scores, were protected by copyright, so the attorney could not have them.

The problem with the 'copyright' excuse is that the use proposed by the attorney falls into the fair use exception, in copyright law. IOW, there is no copyright protection for what the attorney wants to do with it.

Further, I think that the argument that the scaled scores are protected is unsustainable. That's the basis of the expert's opinion, so that information must be discoverable by the other side.

We are so willing to protect the patient against harmful breaches of confidentiality, yet we could seemingly care less about protecting the patient's right to tell us when TO release records (thereby not harming the patient when by releasing the records to the right person at the right time). Confidentiality literally does not exist without it's flipside sibling - for example, if the practitioner merely protects the records from improper disclosure but does not permit the patient control over when the records ARE released, that's akin to no control whatsoever, because the psychologist makes all the release decisions (none). 

Records cannot be withheld from the patient / evaluee (whatever name you refer to them). Healthcare providers are risking both a license and HIPAA complaint, at the very least. In Florida, there have been six licensing sanctions against forensic mental health provides, just in the last 10 years.

www.FL-forensic.com






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Fraser v. Avaya Civil Action No. 10-cv-00800-RPM.

Another HIPAA case. In Fraser v. Avaya, the Court seems to opine on the matter of whether the evaluee can be required to sign away his/her rights in a forensic matter.

If you have read some of my articles (www.fl-forensic.com), you will know that some FMHPs refuse to release records (just had another attorney consult me on that today, in fact!). One of the justifications for doing so is an assertion that they can require the evaluee to sign a form stating that they have no right to access their records. 

In this case, the employer required the evaluee / disability-applicant to waive confidentiality rights (permitting disclosure to persons who had no right to the records), denying benefits when the employee refused to sign.

Among other complaints, the employee alleged violation of HIPAA. In it's opinion, the Court seemed to agree, eventually denying Avaya's motion for summary judgment and remanding for evidentiary hearing(s).

Here's a summary of the opinion:
Fraser applied for disability

 Multiple doctors, including an IME, diagnosed him as disabled

Case manager required him to sign a release form authorizing access of the medical records to “any affiliate or representative of Avaya or persons performing business or legal services on its behalf, ” even though the information would be “used only to evaluate whether or not my medical condition satisfies the requirements of federal, state or local FMLA and disability laws, state Workers’ Compensation and/or Avaya’s welfare benefit plans”.

He refused to sign and Avaya denied his claim.

The Court said “an employee’s application for disability benefits provides a legitimate business reason for an employer to obtain information about the medical diagnosis supporting the application” but that “does not justify requiring the applicant to sign a medical authorization form that would authorize disclosure of confidential medical information to more persons than those necessarily involved in the evaluation of the application”.

The Court also said “Reasonable jurors may conclude that the scope of disclosure stated in Avaya’s preprinted form was unnecessarily broad and that the plaintiff had a reasonable concern about whether his right to medical privacy would be protected”



http://scholar.google.com/scholar?scidkt=4791583976784800839&as_sdt=2&hl=en
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Tuesday, October 8, 2013

JB v. DCF 107 So.3d 1196 (2013).


Here's another interesting case, in the area of child abuse / dependency / child protection / termination of parental rights:

http://scholar.google.com/scholar_case?case=15051245391346990206&hl=en&as_sdt=2,10

This is a case out of 1st DCA, in Tallahassee. In JB, the DCF removed six children from the home, based on allegations of child neglect, including medical neglect. Admittedly, the family had had multiple problems, and they had been involved in prior dependency cases.

What makes many dependency cases interesting, from a psychologist point of view, is that termination of parental rights (section 39.806, F.S.) requires TWO findings:
1. when the child has been adjudicated dependent, and
2a. the child continues to be abused, or
2b. the parents fail to substantially complete the case plan, or
2c. even if the parents completed the case plan, the continuing involvement of the parents threatens the well-being or mental or emotional health of the children

BTW, these cases need to be won at the trial level, because the standard of review is the highly deferential "no one could reasonably find such evidence to be clear and convincing" standard  A.H. v. Fla. Dep't of Children and Family Services, 85 So.3d 1213, 1215 (Fla. 1st DCA 2012).

IOW, based on the above criteria, the psychologist expert must make a risk determination / assessment regarding whether there is a substantial risk of significant harm, and whether termination of parental rights is the least restrictive means of protecting the child.

In this case, the question was whether the three years that had passed, from 2009 to 2012, would be relevant to a risk assessment. The mistake made by the trial court was to rely solely on the then-three-year-old determinations of dependency, without consideration of other evidence.

Further, the 1st DCA reminds us that the burden is on DCF to prove the risk, at the clear and convincing level.

The Court observed that there was numerous evidence of a lack of risk, including residences that were not unclean, unsafe, or unsuitable, a lack of substance abuse, no evidence of behavior that could be considered to present a risk to the children, or any substantial harm to the child in question. The Court also observed that DCF failed to perform its job, including a reunification case plan and proving that termination was the least restrictive means of protecting the child.

Although prior terminations can be considered as evidence, that was not sufficient to establish future risk, because there was no nexus between the past events and predicted future behavior - even if they are poor and their housing unstable.

Prediction of future risk requires an assessment that the future behavior "can be clearly and certainly predicted"  Palmer v. Dep't of Health & Rehabilitative Servs., 547 So.2d 981, 984 (Fla. 5th DCA 1989). One example of this is "if the parent is so afflicted that no reasonable basis exists for improvement" L.B. v. Dep't of Children & Families, 835 So.2d 1189, 1195 (Fla. 1st DCA 2002).

The Opinion does not state whether an expert provided an opinion in this case. An expert opinion is often required, and is sometimes misused by DCF. The reason that it is misused is that experts often make predictions of child abuse that is based more on personal opinion than on science. An additional problem, in the area of child abuse, is that the research is relatively sparse. Termination of parental rights has been called, by Randy Otto, PhD, the 'red headed stepchild' of psychology. It receives little attention or research funding, and experts are often left with little to stand on.

I'm hoping that the new Daubert evidence law will improve the situation. It will depend, in large part, on the willingness of the Courts and defense attorneys to cross examine experts and bring us, kicking and screaming, into the 21st Century.
Bruce Borkosky, Psy.D.
www.FL-forensic.com





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Monday, April 16, 2012

IT'S TIME TO FRY THE FRYE STANDARD

On February 9, 2012, the Florida Supreme Court ruled in the case of King v. Florida (http://www.floridasupremecourt.org/decisions/2012/sc09-2421.pdf).

In this case, the court ruled on the admissibility of tool mark identification science. the Supreme Court ruled that a Frye hearing is only warranted when "an expert attempts to render an opinion that is based on new or novel scientific techniques", citing  U.S. Sugar Corp. v. Henson, 823 So. 2d 104, 109 (Fla. 2002).

In my opinion, the court completely missed the point. Using the courts reason, we could then admit the testimony of phrenology experts, because the use of phrenology is an old science. In some areas of science, scientific techniques and statistical inference out strips old techniques. This is certainly the case with criminal evidence – there is a revolution in criminal science investigations and techniques, spawned, in part, by these dates of CSI and related television shows.

It's time to jettison the old Frye standard in Florida law and replace it with the Daubert standard. Experts, the courts, and the public would all benefit from an increased rigor in expert testimony. For criminal defendants, it's a life-and-death matter.

Florida legislators, at the behest of Governor Scott, have taken up the issue. See HB 391, and SB 822. However, for unknown reasons, the bills have floundered, not even being voted on.

It's time to require experts to adhere to a more scientific basis for their opinions.
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SEXUALLY RISKY BEHAVIOR

Recently, I had the opportunity to evaluate a woman that had been previously evaluated by another forensic psychologist. The prior psychologist accused the woman of having poor judgment. The basis for this assessment was a single episode of risky behavior of a sexual nature. The woman had met a man in a public place and allegedly had had sex with him that same day. The psychologist opines that, because the woman did not know this man at all, going off with him and having sex was sufficiently risky to cast doubt on her judgment in other situations.

The problem with such opinions is that they are uninformed by research that may demonstrate the actual frequency with which such behavior occurs. In fact, such behaviors are a relatively frequent occurrence. At the very least, they are not infrequent enough to infer that one episode of such behavior equals poor judgment overall. In a study of college students to authors developed a survey of sexually risky behaviors. In this survey, almost 1/4 of the students had sex with someone they just met.

Thus, the psychologist should not have made a negative opinion about the woman's judgment. Such behavior is relatively common, even among college students.

See:
Turchik and Garske addressed this subject (Turchik, J. A., & Garske, J. P. (2008). Measurement of Sexual Risk Taking Among College Students. Archives of Sexual Behavior, 38(6), 936-948).
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Friday, November 18, 2011

The first blog

In this blog I hope to educate readers about forensic psychology - how psychology can help inform the legal system, to make better decisions. I hope to focus more specifically on Florida law, caselaw, and precedent.
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