Category: Professional compliance
Documents regulating tests in South Africa
In South Africa, psychometric tests are controlled by law. Recently the regulatory environment changed, and now the consultants at Psytech SA find ourselves fielding many questions around this. In some cases, people are
asking for documentary proof of the changes to the regulations. So we felt it necessary to collect them in once place.
Disclaimer: Please note that the interpretations in this article should not be construed as legal advice. This is merely an attempt to guide colleagues based on the documents that apply to our profession. Colleagues are free to have a different opinion, and if in doubt, you are encouraged to verify the information presented here, with the Professional Board for Psychology of the HPCSA or with a legal advisor.
Employment Equity Act
The Employment Equity Act as originally passed, placed limitations on the use of psychometric testing in occupational settings in South Africa. Specifically, it specified in section 8 that psychometric tests and related techniques need to have certain properties before they can be used legally to assess persons for jobs. These are:
- Tests must be reliable
- Tests must be valid
- Tests may not discriminate unfairly against any individual or group
- It must be possible to use them fairly
Also note that it is allowed to discriminate on the basis of the inherent requirements of the job. It is unfair discrimination which is forbidden.
The Employment Equity Amendment Act became effective in August 2014.
The additional requirement indroduced by this amendment act, namely that tests needed to be certified by the HPCSA in order to be used in Industry, was recently set aside by a decision of the High Court. The other requirements as mentioned above, remain valid.
The list of classified tests
The updated list of classified tests was published in the government gazette in September 2017.
Some background about the list of classified tests
Prior to the publication of the list as a Board notice, it existed as Form 207, which was a Board policy document.
This document was not legally enforceable. The gazetted list is official and enforceable.
Now that this list has been gazetted, it becomes a criminal offence for a person who is not registered with the HPCSA in a professional category which is allowed to use psychological tests, to use a psychological test.
The three sections in the list
The list of classified tests is divided into three sections, and there is a good reason for this.
Tests that have been classified and reviewed
These tests have been classified in terms of the Policy on the Classification of tests, which is available for download above.
If a test appears on this part of the list, it means:
- The test was found to be psychological in nature, and using them constitutes an act reserved for the profession of psychology.
- The test publisher had to submit the test itself, the manual and documentation, and a portfolio of research evidence for review.
- The test was sent for independent review in terms of the test quality requirements stipulated in the Employment Equity Act - reliability, validity, lack of bias.
- The reviewers submitted independent reports and the publisher had to make the necessary changes and corrections.
- Once the test met the requirements, a certificate was issued.
- Unless the test's classification certificate specifies otherwise, these tests may only be used by registered psychology practitioners (psychologists, psychometrists and registered counsellors).
Note that only tests in this first section have been reviewed for psychometric properties by the Professional Board for psychology.
Tests that have been classified but not reviewed
The tests in this section were originally classified by the now defunct Test Commission of the Republic of South Africa (TCRSA)
- The TCRSA did not review the tests for quality, but in terms of how much psychological expertise was required to use them (This indirectly related to quality because a really good, well structured test requires less psychological expertise to interpret).
- When the current system for the classification of tests was introduced, the tests that had been classified by the TCRSA were condoned as psychological tests. Thus, they were classified on the basis of their historical status.
- Practitioners who use tests that appear in this section of the list should bear in mind that the tests and norms may possibly be obsolete.
- The Professional Board for Psychology has stated that a process of re-evaluation for tests that are older than ten years will be instituted. During this re-evaluation process, it will be determined whether these older tests still meet the requirements to be used in South Africa. After that re-evaluation, these tests may move into the first section of the list (fully classified and certified), or they may be flagged as no longer meeting the technical requirements.
None of the tests in this section of the list was reviewed in terms of the requirements of the Employment Equity Act. Test users will have to rely on information provided by the test developer or publisher, or another independent research authority, The onus is on the psychology professional who uses these tests to ensure that the tests meet the requirements of the Employment Equity Act. If the use of a test is challenged, evidence regarding its psychometric properties will probably have to be produced and defended. If this happens, the forum where it will be considered will probably be the CCMA or the Labour Court.
Tests classified as in development or being adapted
The tests in this section are not yet fully classified.
- They appear on the list because the developers or publishers have notified the Professional Board for Psychology that the test is being developed or adapted for use in South Africa.
- All that is required for a test to be added to this part of the list is a notification of some basic information about the test.
- A test gets added to this part of the list list when it appears that it measures a psychological construct and its use will result in a psychological act (An act reserved for the profession of psychology in terms of the Health Professions Act).
- Tests on this section of the list may only be used by registered psychology practitioners, because they have not been reviewed and no decision has been made about them possibly being used by anyone other than a registered psychology practitioner.
- The review process for these tests is still in progress, and their research portfolios have not been finally approved.
- Thus, they are provisionally classified as psychological in nature in order to protect the public from them being used by unregistered persons.
- It is not uncommon for tests to remain in this section for a long time. During this period, a lot of progress can be made with research on the test.
- If a test is in this section, it does indicate the intention of the test developer or publisher to comply with the review process, and it probably means that some evidence on the test's psychometric properties is available or in preparation.
The onus rests on the test user to verify that the evidence about the psychometric properties of these tests supplied by the test devewloper or publisher is sufficient and credible enough to enable the test to be used in compliance with the Employment Equity Act, and it may be necessary to prove this in the CCMA or Labour Court.
The use of tests in development/being adapted
The Professional Board for Psychology states in the Board Notice with the list of classified tests, that tests in this section of the list may not be used for gain by psychology practitioners. They must be used in conjunction with other measures, for research purposes only. The "not for gain" stipulation applies to the publisher and also any consultant who may be using these tests to deliver services. Charging high fees for training people to use a test which is not yet fully classified, would also go against this stipulation.
The scope of practice of the profession of psychology
This regulation, which has been in effect since 2008, defines the actions that are reserved for the profession of psychology. These actions are commonly referred to as "psychological acts".
It is a criminal offence for persons who are not registered with the HPCSA as psychology practitioners, to perform any of these actions.
What makes a test psychological?
When a test is submitted for classification, the reviewers need to decide whether the use this test will result in a psychological act.
It is clear from this regulation that assessment activities are emphasised as being reserved for the profession of psychology.
Which constructs are included?
The types of constructs that result in a psychological act if they are assessed, include:
- Mental Processes
- Personality adjustments
- Personality dynamics
- Personality make-up
- Personality functioning
- Emotional functions
- Adjustments of individuals
- Adjustments of groups of persons
- Intellectual abilities
- Neuropsychological disorders
- Mental functioning deficiencies
- Psychophysiological functioning
What is notable about this list is how comprehensive it is.
It should also be noted that the assessments of individuals as well as groups of people is included.
What types of assessment methods are included?
The types of assessment methods that are controlled because they result in a psychological act include:
- "Similar methods"
- Other techniques
The range of assessment methods is very wide indeed.
Assessment for what purpose?
The scope of practice is written very comprehensively. Assessments that result in a psychological act include:
- Assessment for diagnostic purposes.
- Assessment aimed at aiding persons or groups of persons in adjustment of personality, emotional or behavioural problems.
- Assessment aimed at the promotion of positive personality change, growth and development.
- Assessment for personnel career selection.
Thus, the fact that assessments may be done to assist growth and development does not make any difference.
Occupational assessments are not exempt.
If a test is psychological, what are the implications?
Only registered psychology practitioners may exercise control over psychological tests - including doing research and development on them.
This is why we at Psytech require you to give your HPCSA registration number when you order test materials or the credits to score them.
We also check the online register to verify that your registration is still active.
The code of conduct for the profession of psychology
The code of conduct for practitioners registered under the Health Professions Act is very comprehensive. There is a generic section as well as a section for each of the professions.
The document which you can download here contains the generic section as well as the section specific to the profession of psychology.
The code is not difficult to understand, and because assessment is a psychological act, almost the entire code is relevant. It is not necessary to reiterate the entire code here. There are however some specific aspects of the code with particular relevance to testing and assessment, that we shall highlight here because we have received enquiries about them.
Aspects of the ethical code that are particularly relevant to psychological assessment
"Secret remedies" are forbidden
- Tests are a form of health technology. Their workings must be open to scrutiny, and they must be able to fulfil the claims that are made for them. (item 19)
- In terms of this requirement, the requirement that publishers and developers should submit tests for evaluation and classification, is justified.
Cooperation with instructions, directives and processes
- It is considered misconduct to defeat or obstruct the Council or Board in the performance of its duties (Item 20).
- This implies that registered practitioners who control, research or develop tests must comply with the classification process.
Assessment with a professional relationship only
- Assessment must be conducted in the context of a defined professional relationship (Item 44)
- Clients must give written informed consent to be tested. (Item 46)
- When consent is implied, such as in the case of a job application, written informed consent is not required.
- Consent is not required when testing is a legal requirement
- Consent is not required when the purpose of the testing is to evaluate decision-making and mental incapacity.
- However, in the case of automated or internet-based testing, informed consent must be obtained (Item 46(6)).
- In the process of obtaining informed consent, the limits to confidentiality must be clarified.
- Practitioners need to declare the limits of their findings when group assessments are done. This would apply to observed behavioural exercises, 360-degree assessments, reports on group discussions and so forth. These assessments are considered less reliable and valid than individually-derived scores.
Electronic, internet, and other indirect assessments
- When such assessments are used, the practitioner must declare this and appropriately limit the nature and extent of his or her findings.
- This is relevant to the use of all computerised assessments and computer-generated reports.
- Informed consent must be obtained for automated and internet-based testing, even when this testing is done for the purpose of a job application.
Communicating of results
- Releasing test results or raw data to persons who are not qualified to use that information is considered misuse of assessment information (Item 45)
- When test results are communicated, they must be accompanied by adequate interpretative aids and explanations. (Item 49 and Item 52)
- When results are communicated to another psychologist or professional, the client needs to give informed written consent.
Category: Professional compliance
This article was written in response to some questions submitted to us by a concerned psychologist. Because formulating the answers responsibly involved considerable study and thought, we are placing the result here to benefit all interested professionals. We hope you find it useful.
Please note that these answers involve some interpretation of the regulations. They must therefore not be taken as the official position of the Professional Board for Psychology - they represent our thinking at Psytech and our attempt to guide our clients in good faith.
Links to the actual regulations have been included for verification and to provide context.
Please feel free to submit additional questions or to contact us if anything is not clear.
What does it mean if a test is classified by the Professional Board for Psychology as a psychological test?
What it says about the test
When a test is classified as a psychological test, it means that it has been evaluated in terms of its psychometric properties, and that it has been found to meet certain minimum requirements as set by the Professional Board for Psychology.
What it says about the test publisher
The process of having a test classified is onerous and expensive. If a test publisher has gone through with the process, that says a lot about their responsibility and willingness to comply with the regulations.
What it means for the use of the test
If a test is classified as a psychological test it means that the use of the test results is an act reserved for the profession of psychology. The scope of the profession of psychology, regulation 993 of the Health Professions Act, reserves a large number of activities for psychology professionals. Many of these activities relate to assessment.
Download regulation R993268.68 KB
Aspects of human behaviour that may only be assessed by psychology professionals:
The following constructs are specifically mentioned in regulation 993:
- Intellectual abilities
- Personality make-up or personality functioning
- Emotional functions
- Psychophysiological functioning
- Neuropsychological disorders
- Mental functioning deficiencies
For what purpose would these assessments be done, that makes it a "psychological act"?
There is also reference to the purpose of the assessments. Specifically mentioned are: The evaluation of emotional, behavioural and cognitive processes or adjustment of personality. Specific reference is also made to "personnel career selection".
On whom would these assessments be done?
Not only individual assessments are relevant, assessment of groups of persons are also considered to be the domain of the profession of psychology.
The regulation on the scope of the profession is obviously written with the intent to be comprehensive
The domains of assessment that define an assessment as psychological in nature are specified comprehensively and repeatedly, and there is repeated reference to different techniques of assessment - not only tests, but other techniques and apparatus as well. There is a clear effort to cover all possible ways of doing assessment. By the way this regulation is written, it is clear that the intent of the legislators was to regulate psychological assessment in all its aspects and applications, and to reserve it for the profession of psychology.
Currently tests are classified only as being psychological tests or not. There is provision in the current classification system for tests to be classified as psychological tests that may also be used by other professions (for example remedial teachers or occupational therapists), but to our knowledge no tests have been classified as such.
Tests that have not been submitted for classification
It is possible that a test may measure one of the constructs reserved for the profession of psychology, but that it may not have been submitted for classification. Indeed it is very likely - the level of compliance among the people who distribute and sell tests has been disturbingly low. If a test measures personality, its use results in a psychological act whether it has been classified or not. If the test has also been classified, there is no doubt that using it constitutes a psychological act, and it has also been scrutinised for psychometric quality.
Classification system for tests under review
The Professional Board for Psychology has been engaged in the process of revising the system of classifying tests - this involves both the procedure for classifying the tests, and the categories in which they may be classified. The process of revision and consultation is still in process. It is not yet known what the revised classification system will look like, but it is important for practitioners to be aware that the classification system and regulations are subject to change, and it is incumbent on the practitioner to stay abreast of any changes. When the new system is finalised and accepted, we shall update these pages to keep our clients informed.
It is also known that all tests that are currently classified will have to be re-evaluated according to the new system that will be introduced. That means a lot of additional work for all test publishers.
Who may administer psychological tests?
A certificate is issued when a test is classified, and that certificate specifies what different categories of assessment practitioner may do with respect to the test in question - for instance: administer it, interpret it, write reports on it etc.
Download the scopes of practice of different categories of psychology professionals.361.17 KB
- Psychologists may administer any psychological tests in which they have been trained.
- Psychometrists may administer any psychological test in which they have been trained. It must be noted that there are some types of assessment that psychometrists may not use - these are tests designed to diagnose pathology, neuropsychological tests and also projective tests.
- Registered Counsellors have a more limited range of tests that they may use - there is a specific list of tests that have been approved for the use of registered counsellors. The assessments registered counsellors do are also supposed to be for basic screening purposes - if comprehensive assessment is needed, registered counsellors are expected to refer the client to a psychologist or psychometrist.
The register for psychotechnicians was closed several years ago but there are still some persons registered in that category. No new psychotechnicians are being trained or registered. Psychotechnicians may administer and score some tests where the classification certificate of the test specifically allows it.
There is currently no specific category of "test administrator" recognised by the Professional Board for Psychology, other than the professional categories mentioned above.
It is important to take note though, that according to the current scope of practice for professionals in psychology, psychometrists constitute the professional category specifically trained to administer and interpret tests of a non-clinical and non-diagnostic nature. A set of competencies has been outlined for psychometrists to guide training institutions, and a lot of attention is paid to the skills involved in actually administering testing.
It is therefore our contention that for many tests and in our multicultural context, the administration of tests can be reduced to simple reading out the instructions and watching respondents fill in the answer sheet.
What about tests where the administration is totally standardised and routine, or even automated?
Download the ethical rules of conduct for psychologists185.09 KB
Regulation R717 annexure 12 allows for a psychologist to delegate work to an employee (item 8), and this could potentially apply to the case when an administrative worker administers a test that is administered in a mechanical, computerised or purely routine manner, and where the administration requires no psychological skill as such. The responsibility for the objectivity of the process and the procedurally proper administration of the test remains with the registered professional. This would fall under the category of delegated work, and it is the registered professional's responsibility to ensure that the person who does the delegated work is properly trained for it.
Psytech has been reluctant to advise professionals to delegate the administration of tests to any person who is not a registered psychometrist - given that a professional category exists with a clearly defined role of administering tests, and that there are a great many psychometrists, many of whom struggle to find work. We believe that the administration of tests by unregistered persons (even if they have been trained) is a grey area. Even in the court case where the Association of Test Publishers and SHL took the HPCSA to court and attempted to get a court ruling that the administration of a test does not in itself constitute an act reserved for the profession of psychology, the judge did not grant this specific request.
Where the test administration is totally automated, it is difficult to justify the need for a registered professional purely to administer the test - however, this applies to administration only. In fact, our contention is that during the administration of a test, a lot of other important interactions take place. The process of gaining informed consent is one professional action that takes place during the testing process, and this is covered in detail in the professional conduct regulations. Another is the behavioural observation that takes place during testing - this is observation of a professional, psychological nature and goes way beyond a simple process that can be automated. If the test is automatically administered without supervision, the observational information can not be obtained, and the professional in charge of the assessment process has to take responsibility for doing the assessment in the absence of the additional information.
The rules of professional conduct clearly specify that assessment needs to be done in the context of a professional relationship. Only the registered professional can establish this relationship - that is not something you can delegate. How it must be done is not clearly defined, and nowadays technology allows us means of communication that were not even options a few years ago. There are the possibilities of Skype conversations, of a video call, videoconferencing, observation via webcam or video camera during testing, even the telephone. We believe that the establishing of a professional relationship is a necessary preliminary to the obtaining of informed consent for testing, the identification of special needs and circumstances, and especially to defining the limits of confidentiality. With rapidly changing technology and with the regulations that do not spell everything out in up-to-date detail, it is not possible for us to give people a hard and fast answer about all the ethical issues involved with automated testing. However, it is clear that there needs to be a professional relationship, and simply overlooking that aspect is not responsible professional behaviour.
We do not believe that sending a link in an email to a person with whom one has not otherwise interacted constitutes the establishment of a professional relationship.
For that reason, when professionals ask us for access to online testing and especially when they ask us to make a test available for unsupervised administration, we require them to sign a document where they personally take professional responsibility for the way in which they use this technology.
It is simply not possible to automate responsible professional behaviour.
The scoring of tests
Regulation R717 annexure 12 allows for a psychologist to delegate work to an employee (item 8), and this would be the case when an administrative worker scores a test that can be scored in a mechanical, computerised or purely administrative way. The psychology professional is responsible for ensuring that objectivity is not compromised by multiple relationships, and for ensuring that only those responsibilities that such a person can be expected to perform competently on the basis of his or her education, training and experience are delegated. The psychology professional also has to ensure that this person performs these services competently.
Regulation R717 also allows for automated scoring and interpretation systems (items 52, 53 and others). The responsibility for the use of these systems clearly rests with the psychology practitioner.
Thus, while delegation of certain actions that do not in themselves require psychological expertise are allowed, professional responsibility can not be delegated to an unregistered person. The regulations also appear to require an active concern with quality control and direct supervision. The professional may not assume or trust that delegated activities are competently done, he or she has to ensure it.
Interpretation, reporting and feedback
Nowadays, computer systems can do a credible job of interpreting and reporting on psychological tests. However, only a registered professional can decide whether a specific report is appropriate for the purpose of the assessment, whether it is comprehensive enough, whether the report incorporates all relevant information, whether it is clear enough for the intended recipient or whether further elucidation is required. Often there are also several options in terms of computer-generated reports, and the decision on which particular report should be used is in our judgment one that needs to be made with professional discretion. Sometimes input from multiple reports needs to be combined. Feedback is a professional interaction that may also involve giving professional advice. In the case of a person who was assessed for selection or development in the context of a particular role, the feedback given to the management would not necessarily be the same as the feedback given to the respondent. These distinction require professional judgment.
Thus, in our view, in the context of the current South African regulations, the giving of feedback on psychological tests requires a registered psychology professional. A professional may in fact decide that the computer-generated report is adequate as feedback for the purpose at hand and that no further interaction is required. In that case, the professional concerned must take personal professional responsibility for this decision and its consequences.
Unregistered persons who use tests
Human resources practitioners and life coaches could also be registered psychology professionals and as such, they would be allowed to use psychological tests. It is their responsibility to remain within the scope of practice of their registered professional category. If they are not registered with the HPCSA as psychology professionals, HR practitioners and life coaches have no special status with regard to the use of psychological tests. They may only use them if they are registered as psychometrists or psychologists.
Some tests are not psychological - for instance, tests of knowledge or skill do not constitute psychological assessments. They may be used by unregistered persons.
However, if a test measures one of the constructs listed in the scope of practice of the profession (see above), it is a criminal offense for an unregistered person to use it. If they also presented themselves as being a registered psychology professional while being unregistered, the offense is even more serious and carries a heavier penalty. Unfortunately the HPCSA does not have any jurisdiction over unregistered persons - it is a matter for the police.