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
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:
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- 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)
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- 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.
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- 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:
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- Behaviour
- Mental Processes
- Personality adjustments
- Personality dynamics
- Personality make-up
- Personality functioning
- Emotional functions
- Temperament
- Adjustments of individuals
- Adjustments of groups of persons
- Intellectual abilities
- Aptitude
- Interests
- Neuropsychological disorders
- Mental functioning deficiencies
- Psychophysiological functioning
- Psychopathology
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:
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- Tests
- Questionnaires
- Instruments
- Apparatus
- Devices
- "Similar methods"
- Projections
- 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:
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- 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)
Informed consent
- 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.
Group assessments
- 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.