|It was thirty years
ago that I first began to ask questions about the personal beliefs
of mental health experts and to examine how these beliefs influenced
clinical decisions and professional opinions.
Back in 1969, my research focus was on the practice of psychiatry.
I spent several years examining how psychiatrists made decisions
about their patients. While most claimed to be very confident about
their diagnostic and treatment decisions, these decisions seemed
often to have little to do with the symptoms or the histories of
their patients. They seemed more connected to the psychiatrist's
theory - and especially his or her belief about the causes of people's
From those early days, I have had the tendency to wonder where ideas
come from and the inclination to seek out and question the theories
on which opinions are based..
Over the years, I have broadened my focus from the arena of mental
illness to a wide range of issues such as psychotherapy, trauma
counseling, violence prevention and parenting. Always, the experts
are telling us the answers; suggesting the cures, the right decisions
and the correct actions. And usually there is a tone of benevolence;
an air of confidence. Unfortunately, what seems to be lacking is
a solid foundation to support what they are saying.
Most of you, I'm sure, know the fairy tale about the little boy
who saw that the Emperor was naked and shouted: "The emperor
has no clothes!" I feel sometimes a bit like that child. I
now seriously suspect that, when it comes to my own profession,
something equally shocking must be said. I find myself now pointing
at psychology and suggesting that the clothes have no Emperor.
I showed this cartoon in Halifax while delivering an invited address
at the 1997 meeting of the National Association of Provincial
Court Judges. I did not intend that it lighten a serious topic.
I showed it then and I show it today, because it helps to get
my point across.
Some years ago I became especially concerned about the growing
influence that psychologists were having in the Courts and on
the Justice System. As public funds began to dry up in Health
and as an increasing number of clinical psychologists competed
for the dollars which were left, I saw more and more of my colleagues
scurry into the arena of forensic psychology. I don't mean to
suggest that psychological testimony is new to the Courts. It
has been around throughout the 20th century, long before its use
in the infamous Leopold and Loeb trial. But what is alarming is
the recent rapid expansion in the field.
In a 1995 survey of American Psychological Association (APA) members,
40% said they did forensic work. Patrick DeLeon, the President
Elect of the APA, has included further expansion of forensic work
in his year 2000 agenda. He "seeks closer relationships between
psychology and the law, which could lead to more career opportunities
for psychologists in forensics." (APA Monitor, Jan. 99, p.37)
Today, I'll focus my concerns on forensic psychology specifically
as it relates to family law matters - custody, access and parental
competence. This area of practice is a tremendous source of income
for psychology "experts." The cost of an evaluation
ranges from $2,000 to $25,000. In the mid 1970's it was estimated
that in the US the yearly price tag for all the custody evaluations
done was $24 million. (Hagen, 1997, p.199)
These services are purchased because it is widely accepted that:
(1) the opinions provided are based on three solidly established
professional skills: observation, interviewing and testing
(2) the theories presented are research-based.
People believe that experience
and professional training make psychologists more astute, unbiased
and perceptive when making observations and more able to make
accurate judgments while conducting interviews.
If a five-year-old boy clings to his mother, is this an indicator
of a pathological attachment to her, of immaturity, of his fear
of an abusive father, of his fear of strangers or of his anxiety
in the situation? While that observation, in most cases, wouldn't
be interpreted in isolation, it seems likely that it will be understood,
and perhaps stated, according to the psychologist's theoretical
orientation and more importantly, his or her beliefs.
Anyone involved in custody cases knows that experts often disagree;
that's why each side often hires its own. If we stopped to look
at the frequent disparity between views, we might realize that
opinions lack, rather than reflect, objectivity. In the cases
of these dueling experts, it is often the one who has the most
impressive credentials or the one who can tell the best story
who is most influential. As one lawyer puts it: "I would
go into a lawsuit with an objective uncommitted independent expert
about as willingly as I would occupy a foxhole with a couple of
What psychological research tells us is, or rather should be,
compelling. In the time allowed, all I can do is summarize some
of the relevant results mentioning one or two key sources for
The experts operate at a worse than chance level when they claim
to know who is telling the truth and who is lying. (Hagan)
Clinical interviews are often
leading in nature. Suggestions made by the experts can easily
result in exaggerations, fabrications and false claims and this
is a particularly high risk with children. (Ceci & Bruck;
When psychologists predict
future behaviour they are no better than the rest of us - studies
which examine the correctness of predictions of such things as
violence, academic performance and recidivism show psychologists
to be operating at about (toss of a coin) chance levels. (Dawes)
The clinical experience and
professional qualifications, which are often touted to bolster
their opinions, have no relationship to accuracy of judgment or
predictions. It does not matter whether you have a B.A. or a Ph.D.;
6 months or 20 years of experience - an opinion is only an opinion.
Surely, even if the observations and the interviewing does not
make the experts special and worth the expense, we know that the
tests they use are reliable and valid. But do we?
The buzz word now is "actuarial" which simply means
that numbers are used. Using numbers, of course, gives the impression
that something real has been measured. That is, however, not necessarily
The popularity of psychological testing began with the IQ. If
Johnny scored 115 and his big sister 105, then he was smarter.
It took us years to realize that these numbers were abstractions,
with very little usefulness. Unless there is a very large difference
in the IQ's of Johnny and his sister, the numbers tell us nothing
at all. They don't predict whether Johnny would do better at school
or succeed in life any better than his old sister. There is no
reason to claim that a child will do better or worse with the
parent who has either the higher or the lower IQ or that the child
would be better off with the parent whose IQ is more similar to
This seems to be the crux of the problem when the IQ test is used
in custody matters. The scores, while they may give the psychologist
something to talk about, likely serve no useful function whatever
in determining the best arrangement for the child. Nevertheless,
according to surveys, IQ tests are being used 54% of the time
with children and 43% with adults. For what purpose?
A similar criticism can be made of the personality tests which
most often show up in reports. The Rorschach inkblots, the MMPI,
the TAT were all intended to diagnose serious psychopathology.
When used on a normal population, which covers the vast majority
of those involved in custody disputes, they are about as relevant
and predictive as would be a horoscope. Often, especially with
the MMPI, computerized interpretations are used, referring to
a hypothetical individual who score in a particular range. (One
of the best sources of critiques of specific tests is Ziskin.)
There have also been developed a host of custody-specific tests.
The problem is that none of these has any established ability
to predict what is best for the child or the family. I'll give
just one example. The Bricklin Perceptual Scales claim to be research-based.
The problem is that its validity has been determined by seeing
how often its findings concurred with the judges' decisions in
cases in which it was used. This 90% concurrence sounds impressive.
However, it is being erroneously and misleadingly used to give
the impression that the test is useful in helping the courts arrive
at the best decision. This figure could very well mean either
that the judges would have arrived at the same decision independent
of this data or that test results have had a persuasive effect
on these judges. If the former is true, use of the Scales represents
a waste of money; if the later is true, decisions are being contaminated
by them. No-one bothers to mention, let alone test, these possibilities.
The second one I find especially disturbing. People assume that
the opinions the experts provide lead to better decisions; that
judges would not do as well without the opinions of the experts
- that somehow children would be more likely to be harmed. What
this boils down to is the idea that in the long run children are
helped and protected from harm because of the influence of the
experts. Unfortunately, there is not a single study which shows
this to be true. Psychologists are free to offer opinions or make
predictions secure in the knowledge that they will not be blamed
for being wrong.
As far as supporting the validity of expert opinion, the data
on observational and interviewing skills goes in the opposite
direction, indicating that the opinions of the experts are no
better than those of the average person. The tests have little
to offer other than their numbers; none of them has any demonstrated
ability to improve the accuracy of predictions. And predicting
is what this is all about. What the Courts want to know is who
will be the better parent or what arrangement is the best fit
for the family.
On a larger and more disturbing level, there is no longitudinal
research to support any of the grand theories of psychologists
or to show that their input in court helps. There is no evidence
to show that mothers are more nurturing as parents, that fathers
are more likely to be violent or that shared parenting is better.
And there is no research that shows that our experts are accurate
over time in their predictions.
Some might argue with me that there is the well-known Wallerstein
study, which is longitudinal in nature having observed the same
group of children for 25 years after their parent's divorced.
Unfortunately, since there is no comparison group in this study,
there isn't much that we can make from it other than that these
children, who lived through a divorce, are not doing particulary
well in life. We don't know if they had might have done better
with a different custody arrangement or in different circumstances.
People often criticize the Wallerstein study - and I could - but
I'm not going to do that right now. Because, despite its flaws,
this study does tell us something very important. It clearly demonstrates
that psychologists can be dead wrong. At the time that this study
began, psychologists believed that divorce had a neutral effect
on children, and some even wishfully believed that it was good,
that it would teach children co-operation, respect and individuality.
Based on that, psychologists predicted that these children should
do well and they set out to prove it. Now, 25 years later, the
research shows that the clinicians' opinions, those which encouraged
many couples to separate and which influenced the governments
of both the US and Canada to make divorce easier, were wrong.
The children did not benefit - they did not blossom and, in fact,
many may have been seriously harmed emotionally, cognitively and
Times change, fads come and go, and the anxious and conservative
90's are certainly different from the free and easy 70's. But
if those experts in the 70's were mistaken in their opinions,
why should we assume that the theories of today's experts are
any more correct?
Let me briefly give you a case to consider: (This case, which
is particularly well documented, cited in more detail in an article
by Donna LaFramboise which is listed in the "recommended
A man whom I will call Mr. Jones is a lawyer here in Vancouver.
He has spent about $300,000 to find out, in his words, that "the
system is insane." When he and his wife divorced in 1994,
his ex-wife was awarded sole custody of their two young children.
The Judge's decision was based on a child custody report written
by one of the most prominent evaluators here in B.C. This psychologist
who does more than 200 reports for the Courts each year, had a
theory. His idea was that custody of the two little girls involved
should be granted to the more fragile of the parents. In giving
his reasons, the psychologist wrote: "in considering the
issue of sole custody to the father, my concern is that the mother
will interpret this to be a rejection of her as a parent and that
she may out of hurt, withdraw from being an active parent to the
children." He continued: "giving the mother sole custody
will bolster and sufficiently make secure her role with the children
that she will be magnanimous in her facilitating the contact between
the children and their father." In effect, these two little
girls were placed in the role of bolstering their mother's disturbed
mental health and the father was left to do what he could, from
a distance, to help them. These were very young children and the
theory was nothing more than a belief expressed by someone recognized
as "an expert."
This particular theory is an unusual one; it is one that I had
not previously encountered. But in virtually every report I have
reviewed, one can find some underlying belief or theory. Most
are more familiar, more pervasive than the one I've just described.
Among the popular ones these days are:
Women are more nurturing than men - the bond with the mother is
crucial - the "good mother is what the child needs most.'
Parental Alienation is a bad thing. The child should not be placed
with the parent who says bad things about the other parent.
Men are more aggressive and violent than women. Living with a
batterer (or even an accused batterer) is an enormous risk for
children "not only to their immediate safety but to the kinds
of violent behavior they may later exhibit as adults."
This last example is taken
from an article about an international group of domestic violence
experts who submitted a brief in the O.J. Simpson case. In this
instance, the theory did not serve to shift the balance and Simpson
retained custody of his children.
However, such theories often do serve to shift the balance. Recently,
I have seen several reports where allegations of sexual abuse
were highlighted in such a way as to influenced judges' decisions.
The idea was expressed that if these allegations were true the
child was at risk and the implication was given that custody should
be granted to the other parent. But wait a minute! If the psychologist
does not know if the allegations are true or false, how can such
an opinion have weight. But they do have weight. They instill
fear, making it seem too dangerous to consider seriously the possibility
that the parent, tainted by the unsubstantiated accusations, may,
for entirely unrelated reasons, be the better choice for the child.
What purpose does it serve to have the Courts swayed to and fro
by such opinions? In most conflicts, aren't there enough opinions
While many colleagues express their outrage that I should raise
such questions, there are some who share my concerns. Most of
these individuals are academics who are seriously concerned that
the uncurbed willingness of psychologists to express opinions
will ultimately destroy the profession. They may be right; however,
my focus is not on saving the profession so much as it is on curbing
the damages to people, whose lives are being affected by the opinions.
Sadly, I no longer have any expectation that the necessary corrective
measures will come from within the profession. I have seen no
evidence that the Professional Colleges will challenge, or in
any way curb, the opinions offered by "the experts."
Mr. Jones, for example, lodged a complaint against the psychologist
whose theory had so much influence in his case. When it was dismissed
by the College of Psychologists here in B.C., he tried to take
it to higher levels. Eventually, he concluded that such efforts
were futile. Individual psychologists have, it seems, an unlimited
right to express their own theories and beliefs - even when there
is no knowledge base on which to support them and even, as this
next example demonstrates, when the "facts" are shown
to be wrong.
When another man, this one in Ontario, complained about a psychologist
who had, in a report erroneously described him as an admitted
sex abuser and an adulterer, the Professional College took no
corrective action. The man's wife got sole custody and he lost
contact with his children for a long time. The psychologist had
not bothered to check the sources of his information. It was inaccurate
but the courts had taken it as factual. The professional college
considered the psychologist's errors to have been "trivial."
So, I turn, sadly but decisively now, away from my profession:
I turn to lawyers. I ask them to do what the lawyers in the Kumho
Tire case did. I ask them to try to demonstrate to the Courts
that "the clothes have no emperor." To aggressively
challenge the admissibility and the weight of "expert"
opinions and, in doing so, to try to avoid dueling expert scenarios.
And I turn to judges. I ask them to listen when these arguments
are made and, whenever possible, to raise questions themselves.
One US psychologist, Margaret Hagen, has suggested that judges
have gotten into the habit of letting the psychologists do their
dirty work, of sorting out messy situations. Her criticism may
be unfair. But the reality is that the decisions are difficult
and that often there may seem to be no basis on which to make
The dilemma I leave you with is that the psychologists who sell
advice may simply be making matters worse.
list of Resource Materials is provided on the following page
Specific, and more detailed references, are available on request.