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Big Win in Maine Court for Psychologists

By August 24, 2017March 29th, 2021Article, News

How do Maine psychologists respond when a subpoena “requires” them to disclose psychological test data (specifically, the raw data) directly to an attorney? This presented a significant ethical conundrum prior to 2013. There was ethical guidance in sections 9.04 (Release of Test Data) and 9.11 (Maintaining Test Security) of the American Psychological Association’s Ethical Principals of Psychologists and Code of Conduct (EPPCC)1. However, there was no statute in Maine regarding this issue and many psychologists found themselves valiantly, but unsuccessfully, explaining to attorneys why the release of test data was so problematic.

Maine Psychological Association recognized this emerging issue for psychologists and in 2013, led by Margaret Zellinger, PhD and with the assistance of our lobbyist, Robert Howe, proposed legislation (LD 1155) that became law later that year. In Maine Revised Statutes, Title 22, Chapter 401 §1725, the disclosure of neuropsychological or psychological test data is prohibited unless the test data is disclosed directly to a psychologist who is qualified to interpret the test results. Further, psychologists were prohibited from re-disclosure of the materials to others, including attorneys.

Last month, this statute was challenged in Superior Court in Cumberland County. The case dated back to 2011 but was being heard in 2017. After conducting an evaluation and being designated an expert witness in the case, the psychologist received a subpoena for all his records and documents, including the neuropsychological and psychological test data. The psychologist legitimately refused to produce this data and cited the statute. The psychologist then contacted MePA, who in turn asked APA Practice Organization’s Legal and Regulatory Affairs lawyers for assistance. The APAPO supplied MePA and the psychologists with supporting materials.

A hearing occurred and the Defendants’ attorneys argued that the burden was on the psychologist to demonstrate how disclosing the materials would compromise the objectivity or fairness of the evaluation process. In a 12-page ruling, Superior Court Justice Mills sided with the psychologist and opinioned there was no burden for the psychologist to show how it did not compromised the evaluation. She then denied the Defendants’ request to compel production of the test data. Justice Mills concluded that “this statutory language is clear and unambiguous” and requires test data be disclosed only to a qualified neuropsychologist or psychologist designated by the person evaluated.

This is a clear victory for psychologists in Maine who can now be assured there is statute and now case law that protects the test data and ultimately our clients and those we evaluate from harm that might be created by the disclosure and possible misuse of this data.

Diane Tennies, PhD

See for a copy of the entire EPPCC.