AAPL Practice Guideline for the Forensic Evaluation of Psychiatric Disability

AAPL Practice Guideline for
the Forensic Evaluation of
Psychiatric Disability
Liza H. Gold, MD, Stuart A. Anfang, MD, Albert M. Drukteinis, MD, JD,
Jeffrey L. Metzner, MD, Marilyn Price, MD, CM, Barry W. Wall, MD,
Lauren Wylonis, MD, and Howard V. Zonana, MD

Statement of Intent and                                        Efforts were made to minimize the potential for
Development Process                                         bias among the authors due to conflicts of interest.
This document is intended to be a review of legal and       Participating psychiatrists were selected on the basis
psychiatric factors and to give practical guidance and      of their expertise and recognition of their work by
assistance in the performance of psychiatric disability     their peers. Any participating author or reviewer who
evaluations. It was developed by forensic psychia-          had a potential conflict of interest that could bias (or
trists who routinely conduct disability evaluations         appear to bias) his or her work was asked to disclose
and have expertise in this area. Some contributors are      the conflict and to resolve it as a prerequisite for
actively involved in related academic endeavors. The        acceptance of commentary or participation. The de-
process of developing the Practice Guideline incor-         velopment of this Practice Guideline was not finan-
porated opportunities for review by members and             cially supported by any commercial organization.
integration of feedback and revisions into the final
draft. The final draft of the Guideline was approved        Format
by the Council of the American Academy of Psychi-              In Sections I and II, general aspects of disability
atry and The Law in March, 2008. The contents thus          evaluations are covered, including practical and eth-
reflect a consensus of opinion among members and            ics-related considerations and definition of terms.
experts about the principles and practice applicable        Section III provides general guidelines for disability
to the conduct of psychiatric disability evaluations.       evaluations. Sections IV and V address the different
As with any Practice Guideline, this one is not bind-       types of disability evaluations more specifically, uti-
ing, nor should it be construed as setting a standard       lizing a general organizational approach to distin-
of care. The Guideline does not present all acceptable      guish between the types of disability evaluations.
current ways of performing forensic evaluations of          Suggestions are made for adapting the general guide-
persons with psychiatric disability, and following it       lines to these specific types of evaluation.
does not lead to a guaranteed outcome. Fact patterns,          The first general category of disability claims, re-
clinical factors, relevant statutes, administrative and     viewed in Section IV, represents the most common
case law, and the forensic psychiatrist’s judgment de-      sources of referrals for disability evaluations. These
termine how to proceed in a forensic evaluation.            include, but are not limited to, evaluations for Social
   Although treating clinicians may find this Guide-        Security Disability Insurance (SSDI), workers’ or
line useful, it is directed toward psychiatrists and        personal injury compensation, private disability in-
other clinicians who work in a forensic role in con-        surance, and other specialized compensation and
ducting evaluations and providing opinions related          pension programs (e.g., military veterans’ benefits).
to psychiatric disability. It is expected that any clini-   It also covers disability evaluations related to litiga-
cian who agrees to perform forensic evaluations in          tion in which plaintiffs claim that they are disabled as
this domain has the appropriate qualifications.             a result of psychiatric illness or injury and are seeking

                                       Volume 36, Number 4, 2008 Supplement                                       S3
Practice Guideline: Evaluation of Psychiatric Disability

compensation for damages. Such claims generally               question. Such an evaluation, often referred to as an
must be accompanied by psychiatric documentation              independent psychiatric examination or indepen-
to meet the requirements for compensation.                    dent medical evaluation (IME), may be requested by
    Section V is a review of a new category of disability     an insurance carrier, either party in a litigation, or an
evaluation that has emerged during the years follow-          employer. The report should clearly indicate the pur-
ing legislation and case law governing civil rights and       pose of the evaluation, the basis of the opinions, and
the increasing responsibilities of employers toward           whether the opinions are predicated on a record re-
their employees. Broadly speaking, these evaluations          view alone or on a personal examination of the
are designed to meet requirements for an employee             evaluee.
to continue or resume working and are related to the
Americans With Disabilities Act (ADA), fitness for            B. The Increasing Need for Expertise in the
duty, and return to work. These assessments may be            Provision of Disability Evaluations
precipitated when individuals want to maintain em-               The disability evaluation is the most common psy-
ployment but claim that they need accommodations              chiatric evaluation requested for nontherapeutic rea-
to do so. They may also be requested when an em-              sons. Each year, mental disorders affect approxi-
ployer believes that an employee is unable to work            mately 20 percent (23.5 million) of Americans
despite accommodations. A difference of opinion re-           between the ages of 18 and 54.1 Of individuals with
garding the employee’s ability to work can precipi-           any mental illness, 48 to 66 percent are employed,
tate the request for one of these evaluations and usu-        and 32 to 61 percent with serious mental illness are
ally signals the presence of an employment conflict.          employed, compared with the percentage of all
    These two general categories may overlap to some          adults employed (76%– 87%).2 In 2000, an esti-
degree, since both are related to the concept of dis-         mated 30.7 percent of individuals between the ages
ability and work impairment. For example, there               of 16 and 64 who reported having a mental disability
may be a substantial overlap between a disability             (i.e., 2 million people) were employed.3 These indi-
evaluation for insurance purposes and a return-to-            viduals work in a range of occupational categories,
work evaluation or between an ADA evaluation and              similar to those of people with no mental illness.
a fitness-for-duty evaluation. Despite the overlap, the       Among those with mental illness, as in the general
goals of evaluations designed to determine impair-            population, educational attainment is the strongest
ment that precludes work and evaluations that define          predictor of employment in high-level occupations.2
skills and abilities that allow work function differ             Psychiatrists and their patients are all too aware
enough that there are distinctions in approach to             that many mental disorders are chronic or episodic
these two broad categories.                                   and may wax and wane. During acute exacerbations,
                                                              individuals may exhibit symptoms that impair work
I. Psychiatry and Disability Evaluations                      function to a varying degree. Such episodes may pre-
                                                              cipitate withdrawal from the workplace or requests
A. The Disability Evaluation: The Psychiatrist                for accommodations. During periods of relative sta-
as Consultant                                                 bility, many individuals, even those who have some
   The purpose of disability-related evaluations is to        symptoms, may still function without impairment or
provide information that an organization or system            be only mildly impaired.
can translate into a specific course of action, such as          The frequency with which problems regarding
making workplace accommodations, authorizing                  work function, mental disorder, and disability or ac-
health care benefits, arranging for medical care, mak-        commodation arise is such that most psychiatrists
ing changes in employment status, or awarding dam-            report having some experience with requests for dis-
ages. Psychiatrists who provide such evaluations are          ability evaluation or documentation. Employers,
generally required to answer specific questions and           third-party private or public agencies, or workers
must do so in language that facilitates the process of        themselves may request evaluations to meet the ad-
fair and objective decision-making.                           ministrative requirements of the social and legal con-
   Opinions may be offered based on a review of               tracts that are the structure for paid employment.
records alone or on a review of records in conjunc-           Personal injury litigation often involves the evalua-
tion with a direct evaluation of the individual in            tion of disability as part of claims for damages. Indi-

S4                        The Journal of the American Academy of Psychiatry and the Law
Practice Guideline: Evaluation of Psychiatric Disability

viduals may need a report for SSDI that justifies a         workers were insured through public programs in the
request for benefits. Patients may require some type        event of disability. This number has been steadily
of documentation for a private employer that autho-         growing since the 1980s, when only 100 million
rizes leave from work. Psychiatric opinions may be          workers had such insurance.6 In 2003, SSDI paid
solicited regarding necessary accommodations for            $70.9 billion in benefits to 5.9 million disabled
purposes of compliance with the Americans With              workers.7 Mental disorder that prevents substantial
Disabilities Act (ADA) or completion of a Family            gainful employment is the leading reason why indi-
and Medical Leave Act (FMLA) certification form.            viduals receive SSDI. Mental disorders also form the
    Conversely, an individual who has disclosed a psy-      largest single diagnostic category among SSDI recip-
chiatric condition or whose employer may have dis-          ients. In addition, persons with mental disorders
covered or may suspect a psychiatric condition may          have the longest entitlement periods and are the fast-
undergo an evaluation intended to document the              est growing segment of SSDI recipients. In 2001, 28
lack of impairment or the ability to work despite           percent of SSDI recipients received payment based
symptoms. For example, an individual who wants to           on mental disorders (not including mental
resume employment after claiming a psychiatric dis-         retardation).2,8
ability may request a return-to-work evaluation. The           Disability insurance is also available through
employee who wants to continue to work despite a            workers’ compensation and private insurers. In
documented or suspected psychiatric disorder may            2004, short-term disability (STD) benefits were
be required to undergo a fitness-for-duty evaluation.       available to 39 percent of workers and long-term dis-
Some of these evaluations may represent an employ-          ability (LTD) benefits were available to 30 percent of
er’s pre-emptive attempt to avoid a premature re-           workers in private industry; nearly all individuals
sumption of work that may exacerbate the employ-            who had access chose to participate in these
ee’s illness or an attempt to detect instability in an      programs.9
employee who may pose a risk to self or others in the          Statistics regarding the number and cost of mental
workplace. An employer may request a fitness-for-           health-based disability claims submitted to workers’
duty evaluation in response to disruptive behavior of       compensation and private insurance programs are
an employee in the workplace or because of concerns         difficult to obtain. However, indications are that
regarding the potential for violent behavior or the         mental health-based claims also represent a signifi-
ability to operate machinery or handle firearms             cant percentage of private insurance claims. Unum-
safely.                                                     Provident Corporation, the leading provider of pri-
    Individuals with mental disorders often have ac-        vate income protection insurance, reported that each
cess to public or private disability benefits through       year, approximately four to five percent of both
their employment. In 1999, mental or emotional              short- and long-term disability claims are for depres-
problems represented one of the top 10 causes of            sion (UnumProvident Corporate Communications,
disability among adults overall, at a rate higher than      personal communication. October 4, 2005). An-
disability caused by diabetes or stroke.4 The National      other major company reported that among private
Health Survey Interview (1998 –2000) found that,            insurers, claims for stress and mental disorders are
in young adults 18 to 44 years of age, mental illness       now 20 percent of all claims and are one of the fastest
was the second most frequently reported cause of            rising categories of claims.10
limitation of activities (10.4 per 1000 people), ex-
ceeded only by musculoskeletal conditions. For              C. Forensic Psychiatry and Disability Evaluations
midlife adults 45 to 64 years of age, mental illness           Clinicians who are not comfortable performing
ranked as the third most frequently mentioned cause         disability evaluations may refer the evaluations to
of activity limitation (18.6 per 1000).2 The World          forensic psychiatrists. Certain types of disability eval-
Health Organization reports that depression is the          uations, however, may not require forensic training
fifth leading cause of disability worldwide and pre-        or experience. Moreover, circumstances sometimes
dicts that it will be the second leading cause of dis-      compel a practitioner to assume the dual role of treat-
ability after heart disease by 2020.5                       ment provider and forensic psychiatrist.11 For exam-
    Disability benefits are administered through pub-       ple, an application for SSDI benefits requires an ex-
lic and private programs. In 2004, 146.7 million            tensive report from the clinical treatment provider.

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Practice Guideline: Evaluation of Psychiatric Disability

   Forensic psychiatrists tend to be more cognizant               faces the challenge of understanding the relevant def-
of and comfortable with the goals, obligations, and               inition and translating it into a clinically meaningful
constraints of the more complex disability evalua-                concept. A disability evaluation is similar to a com-
tions, especially those that are requested within the             petency evaluation. Competency is also a legal rather
context of litigation or that may result in litigation.           than a clinical construct. Psychiatrists tend to trans-
Clinicians may find moving from the therapeutic to                late competency into capacity and examine specific
the forensic role in such evaluations difficult due to            functional capacities (e.g., to stand trial, to execute a
the often irreconcilable conflict presented by the dif-           will, or to make treatment decisions). They generally
ferences between clinical and forensic methodology,               translate disability into the clinical concept of func-
ethics, alliances, and goals.11–13 In addition, even              tional impairment as it applies to vocational and oc-
seasoned clinicians may find the terms, require-                  cupational skills.
ments, and legal or administrative processes involved                Many DSM diagnoses include a criterion requir-
in disability evaluations unfamiliar.                             ing that the symptoms cause clinically significant
   Many disability evaluations require that an IME                distress or impairment in social, occupational, or
be performed. IMEs differ from evaluations con-                   other crucial areas of functioning. 15 Unfortu-
ducted for therapeutic purposes in many respects,                 nately, the current DSM provides no simple defi-
including lack of confidentiality, involvement of                 nition or explanation of what constitutes psychi-
third parties, and potential legal ramifications. Even            atric impairment. Clinicians are directed to use the
seemingly straightforward evaluations regarding                   Global Assessment of Functioning (GAF) scale or
work ability or disability can become the subject of              other such scales as a practical (albeit imperfect)
administrative or legal dispute. In these cases, the              way of quantifying the severity of functional im-
evaluator should be prepared to defend his or her                 pairment. Although these scales enable quantifica-
opinions in deposition or in court, a situation with              tion by arriving at scores, they are not specifically
which forensic psychiatrists are familiar.                        designed to measure occupational function. In ad-
   The clinician who performs a disability assess-                dition, the scores assigned have an element of sub-
ment should be aware that if questions arise, he or               jectivity and may vary depending on the psychia-
she is likely to be held to the standards of the                  trist’s experience and perspective.
forensic specialist. For example, in a court case                    Where definitions of disability exist, they differ
involving questioning of a child custody evalua-                  depending on the specific context. Nevertheless,
tion, the court stated that although the child psy-               these definitions can help guide clinical assessment of
chiatrist who performed the evaluation was not a                  functional impairment. The World Health Organi-
member of the American Academy of Psychiatry                      zation defines impairments as “problems in body
and the Law (AAPL), she should have been famil-                   function or structure such as a significant deviation
iar with AAPL guidelines because she had under-                   or loss” (Ref. 16, p 10). Under the Social Security Act
taken a forensic evaluation.14                                    (SSA), disability is defined as “the inability to engage
                                                                  in any substantial gainful activity by reason of any
II. General Aspects of Disability                                 medically determinable physical or mental impair-
Evaluations                                                       ment(s) which can be expected to result in death or
                                                                  which has lasted or can be expected to last for a con-
A. Definitions of Disability and Factors Relating
to the Definitions                                                tinuous period of not less than 12 months.” An im-
                                                                  pairment “results from anatomical, physiological or
1. Disability and Impairment                                      psychological abnormalities which can be shown by
   Disability is a legal concept, defined by language             medically acceptable clinical and laboratory diagnos-
in statutes, case law, and insurance policies. The term           tic techniques.”17
has more than one legal definition. The Americans                    Private disability insurers offer a variety of def-
With Disabilities Act, the Social Security disability             initions of disability, depending on the terms and
program, and private insurance plans all define it                nature of the specific policy (e.g., group or indi-
differently. (See Appendix I for a summary of defini-             vidual, long-term versus short-term disability).
tions and salient factors in specific disability evalua-          Typically, these definitions are framed as the inabil-
tions.) In performing an evaluation, the psychiatrist             ity to perform occupational duties due to injury or

S6                             The Journal of the American Academy of Psychiatry and the Law
Practice Guideline: Evaluation of Psychiatric Disability

sickness. Examples may include any occupation (e.g.,          2. Restrictions and Limitations
inability to engage in any gainful occupation for                In a disability evaluation, the psychiatrist is often
which one is reasonably fit by education, training, or        asked to consider whether an evaluee’s psychiatric
experience), present occupation (e.g., inability to           signs and symptoms are severe enough to limit or
perform the material and substantial duties of the            restrict ability to perform occupational functions
individual’s current occupation), and other partial or        generally (i.e., any substantial gainful activity) or spe-
modified definitions. Of note, these public and pri-          cifically (i.e., the occupational tasks of a neurosur-
vate insurers are less specific in their definitions of       geon for a current-occupation private disability pol-
impairment.                                                   icy). Restrictions are most easily understood as what
   The definitions of impairment and disability               an individual should not do. In contrast, limitations
found in the American Medical Association Guides to           can be described as what the individual cannot do
the Evaluation of Permanent Impairment18 are among            because of the severity of psychiatric symptoms. For
the most useful in clarifying the difference between          example, an employee with bipolar disorder may be
these two related concepts. The Guides defines im-            restricted from excessive irregular night hours be-
pairment as “a significant deviation, loss or loss of use     cause of the potential of triggering a manic episode.
of any body structure or body function in an individ-         In contrast, the worker may be limited in the ability
ual with a health condition, disorder or disease” (Ref.       to sustain concentration beyond one hour because of
18, p 5). This alteration of an individual’s health           racing thoughts and diminished attention.
status is assessed by medical means. In contrast, a           3. The Relationship Between Illness and Impairment
disability is an “activity limitation and/or participa-          The presence of an illness or diagnosis does not
tion restriction in an individual with a health condi-        necessarily indicate that an individual has significant
tion, disorder or disease” (Ref. 18, p 5). The latter is      functional impairment. In a competency assessment,
considered a nonmedical assessment, and the AMA               the presence of a psychiatric illness does not provide
definitions clearly indicate that impairments may or          the information necessary to address decision-mak-
may not result in a disability.                               ing capacity. Similarly, determining the presence of
   Despite these definitional distinctions, the terms         significant functional impairment in the event of
impairment and disability are often used inter-               psychiatric illness requires further exploration of the
changeably. In addition, medical opinions are rou-            severity and impact of active psychiatric signs and
tinely offered in a disability claim, including both the      symptoms.
degree of severity and the expected duration. This               Moreover, psychiatric impairment in one area
Practice Guideline endorses the use of the AMA def-           does not indicate impaired capacity to perform spe-
initions unless an alternate definition is specifically       cific occupational tasks and functions in others. Ex-
stipulated. Thus, the Guideline is focused on the             tending the example just given, an individual with
assessment of impairment relevant to disability but           bipolar disorder may be restricted from working ex-
not on the determination of disability, unless specific       cessive irregular night hours. Such a restriction could
types of evaluations expressly include requests for           be disabling for a solo practitioner obstetrician, but
opinions on disability.                                       may not represent a significant problem for an office-
   Medical opinions on disability are not necessarily         based dermatologist. A claimant with an orthopedic
inappropriate and may be requested, despite the fact          injury may be unable to lift weight beyond 20
that the final determination of disability may be             pounds, but if the claimant has a sedentary job, this
made by a fact-finder such as a court, a governmental         limitation would not create an occupational impair-
agency, or an insurance company panel. However,               ment. In addition, for disability insurance coverage
psychiatrists should bear in mind that the determi-           (as noted in more detail later), sustained duration of
nation of disability is ultimately an administrative or       significant occupational impairment is often key for
                                                              the receipt of monetary benefits.
legal decision. An opinion offered about disability is
more than a purely medical opinion. In such cases,            4. Impairment Versus Illegal Behavior
the psychiatrist should be prepared to identify how              The association of impairment due to psychiatric
and why the capacity to meet an occupational de-              illness with illegal or unethical behavior can create
mand is altered.                                              confusion in disability evaluations, particularly in

                                       Volume 36, Number 4, 2008 Supplement                                          S7
Practice Guideline: Evaluation of Psychiatric Disability

cases involving private disability insurance and fit-               ceration, loss of professional license, or suspension
ness-for-duty evaluations of professionals. An indi-                from insurance programs. The psychiatrist should
vidual sometimes claims that illegal or unethical be-               determine the sequence of legal events, the claimant’s
havior was caused by a psychiatric illness. Such                    clinical status, and the timeframe for seeking treat-
claims often involve professional or financial miscon-              ment and filing a disability claim. The specific facts
duct, such as sexually inappropriate behavior by a                  and context of the case are critical to the analysis of
physician or embezzlement by an employee.                           disability based on psychiatric impairments, as op-
   The relationship between impairment due to psy-                  posed to disability due to legal problems. There is
chiatric illness and illegal or unethical behavior has              considerable case law rejecting recovery of disability
not been extensively addressed. Nevertheless, several               benefits when the claimant’s legal disability arose be-
professional organizations have attempted to clarify                fore the alleged medical disability (for example, Ber-
the challenges presented by the evaluation of claims                tram v. Secretary of HEW,21 Goomar v. Centennial
in which both alleged psychiatric illness and illegal               Life Ins. Co.,22 Massachusetts Mutual Life Ins. Co. v.
behavior are present. An American Psychiatric Asso-                 Millstein,23 Pierce v. Gardner,24 and Waldron v. Sec-
ciation (APA) Resource Document notes:                              retary of HEW 25).
     Under certain circumstances, a physician’s problematic be-
     havior leads to questions about fitness for duty. Boundary     B. Ethics and Disability Evaluations
     violations (such as sexual misconduct), unethical or illegal      There are no uniform standards of ethics that ap-
     behavior, or maladaptive personality traits may precipitate
     an evaluation, but do not necessarily result from disability   ply to all forms of disability evaluations. However,
     or impairment due to a psychiatric illness [Ref. 19, p 85].    AAPL has published ethics guidelines that apply to
                                                                    all types of forensic evaluations.26 The AMA and the
Similarly, the United States Federation of State Med-               APA have also addressed the ethics-based require-
ical Boards (FSMB) adopted as policy a 1996 report                  ments of third-party evaluations and expert testi-
that concluded:
                                                                    mony. This section is intended to supplement these
     In addressing the issue of whether sexual misconduct is a      guidelines, specifically in regard to disability
     form of impairment, the committee does not view it as          evaluations.
     such, but instead, as a violation of the public’s trust. It
     should be noted that although a mental disorder may be a          The core concern underlying all the ethics-related
     basis for sexual misconduct, the committee finds that sexual   precepts is the relationship between the psychiatrist
     misconduct usually is not caused by physical/mental im-        and the evaluee. Although a traditional treatment
                                                                    relationship does not exist, a limited doctor-patient
   These policies provide a model for the assessment                relationship is established by a third-party evalua-
of unethical or illegal behavior in the context of a                tion.27,28 This relationship is best understood as one
claim of psychiatric impairment. The analysis of such               in which the psychiatrist has a duty to the referral
claims should be case-specific and should include a                 source to provide a complete and thorough evalua-
detailed examination of the relationship between                    tion as well as certain duties to the evaluee, similar to
mental illness and the individual’s troublesome be-                 but more limited than those in a traditional doctor-
havior. If, for example, an individual has a long his-              patient relationship.28 –30
tory of bipolar disorder and behaves in a sexually                     This limited doctor-patient relationship is based
inappropriate manner or embezzles funds only dur-                   on evolving precepts of ethics that have become
ing a well-documented manic episode while off                       clearer as the subspecialty of forensic psychiatry has
mood-stabilizing medication, a claim of psychiatric                 evolved. The APA’s publication, “Opinions of the
impairment may well be valid. In contrast, if the                   Ethics Committee on the Principles of Medical Eth-
individual has serial affairs with selected patients or a           ics with Annotations Especially Applicable to Psychi-
pattern of financial misconduct over a 20-year pe-                  atry,”31 states that psychiatrists must comply with
riod, but has no documented psychiatric history, a                  the same principles of ethics in performing third-
claim of psychiatric impairment is likelier to be with-             party evaluations as within a treatment relationship.
out merit.                                                          The AMA states explicitly that “a limited patient-
   A related topic is often referred to as legal disabil-           physician relationship should be considered to exist
ity: the inability of a person to perform prior occu-               during isolated assessments of an individual’s health
pational tasks because of a legal barrier such as incar-            or disability for an employer, business or insurer.”32

S8                             The Journal of the American Academy of Psychiatry and the Law
Practice Guideline: Evaluation of Psychiatric Disability

The AMA’s Guides advises physicians performing in-           should carefully consider whether the circumstances
dependent evaluations that they have responsibilities        of a particular case might lead to a conflict of ethics.
similar to those of physicians providing treatment,          The problems that arise from the assumption of both
with respect to providing objective evaluations,             roles may create compelling ethics-related and prac-
maintaining confidentiality to the extent possible,          tical reasons for its avoidance whenever possible, es-
and fully disclosing potential or perceived conflicts of     pecially in the context of actual litigation or circum-
interest.                                                    stances that hold the potential for litigation. In such
   Evolving case law regarding third-party evalua-           cases, treating physicians may suggest that a forensic
tions in psychiatry and other fields of medicine has         expert be retained for the disability evaluation.
also defined the legal duties psychiatrists owe to
                                                             2. Honesty and Objectivity
evaluees. The recent trend is toward legal recogni-
tion of a limited doctor-patient relationship in such           The endeavor to be honest and objective involves
evaluations, which at a minimum includes duties              complex practical considerations. The ethics-based
to maintain limited confidentiality, to disclose             imperative to strive for honesty and objectivity in the
significant findings, and not to cause harm to the           forensic practice of psychiatry has been discussed
individual.27,28                                             extensively.12,13,34 –38 Psychiatrists are aware of the
   The legal and ethics-related obligations attendant        many ways in which the various types of bias can
on a psychiatrist’s relationship with an evaluee in          influence opinions. Of these, advocacy bias related
third-party evaluations should be considered in dis-         to the psychiatrist’s employment or source of in-
ability and other employment-related evaluations.            come may present unique pressures in disability
Lawsuits based on principles of medical malpractice          assessments.
and ordinary negligence, although significantly less            Requests for evaluations of psychiatric disability
common than in clinical practice, are arising more           come most often from third-party referral sources,
frequently than in the past. In addition, complaints         such as insurance companies, government agencies,
of ethics violations can result in disciplinary actions      and attorneys. Some psychiatrists have formal, con-
by professional organizations or state medical               tractual arrangements with organizations or systems.
boards.27,28,33                                              The potential bias in relying for employment on an
                                                             agency that often requests forensic opinions should
1. Role Conflict                                             be consciously considered. Such employment does
   AAPL’s ethics guidelines advise, “A treating psy-         not preclude the ability to provide comprehensive,
chiatrist should generally avoid agreeing to be an           competent, and fair disability assessments. It may,
expert witness or to perform an evaluation of his            however, create pressures that must be dealt with on
patient for legal purposes. . . .”26 Although most psy-      an ongoing basis.
chiatrists concur with this guideline, a similar posi-          Some psychiatrists may have a less formal subcon-
tion regarding disability evaluations is more difficult      tractor relationship with disability insurers or com-
to delineate clearly. For example, SSDI applications         panies that arrange independent psychiatric evalua-
request that the treating clinician provide an exten-        tions for insurers or employers. Large companies,
sive disability evaluation. Employers may require            insurers, and administrative systems often generate
that their employee’s treating clinician provide infor-      multiple referrals. The desire for such referrals and
mation regarding fitness for duty or for purposes of         repeat business can create pressure to generate opin-
meeting ADA or FMLA requirements. Adopting                   ions that are favorable to the referral source.
both treatment and evaluation roles is common in                The psychiatrist who conducts disability evalua-
workers’ compensation cases.                                 tions should not allow opinions to be compromised
   The goals of forensic disability assessment and           by these or other pressures and should not feel reti-
clinical treatment are not always antithetical and may       cent to voice an opinion that does not support the
at times even be congruent. Circumstances some-              referral source’s desired outcome. In disability eval-
times compel a practitioner to assume the dual role of       uations, this obligation extends to recognizing that
treatment provider and forensic psychiatrist or expert       expressing an opinion in the interest of pleasing the
witness,11 especially in disability cases. Nevertheless,     referral source, either to maintain employment or
the psychiatrist who is asked to perform both roles          garner future referrals, is unethical.

                                      Volume 36, Number 4, 2008 Supplement                                        S9
Practice Guideline: Evaluation of Psychiatric Disability

3. Confidentiality                                           though his or her opinion may differ, the ultimate
   The purpose of a disability evaluation is the col-        determination of what information is relevant is
lection of information about an individual that will         made by the psychiatrist. In addition, the evaluee
be communicated to a third party. Therefore, as is           should be advised that any information communi-
usually the case with forensic evaluations, disability       cated to the psychiatrist, even if not determined to be
evaluations are not confidential. The psychiatrist           relevant and included in a written report, may be-
may be required to write reports or provide court-           come public in the event of litigation and in the
room testimony that will reveal material to an em-           process of discovery.
ployer or insurance company that in a clinical con-             All material reviewed by the psychiatrist is consid-
text would never be discussed outside the treatment          ered confidential and under control of the court, the
setting. The individual who raises his or her own            attorney, or the referral source providing it, and
mental status as part of a claim in litigation has           should not be disclosed or discussed without the re-
waived the privilege of confidentiality. An individual       ferral source’s consent or other legally appropriate
is also required to reveal the nature of his or her          order.26 In the event that litigation occurs after an
psychiatric problems to obtain disability benefits or        evaluation has been conducted, the psychiatrist
accommodations for mental disability.                        should not disclose information obtained in the
   The psychiatrist has an affirmative obligation to         course of the evaluation that did not become public
make certain that the limits of confidentiality are          knowledge through courtroom or deposition
communicated clearly before beginning the evalua-            testimony. Such disclosures are ethically inappropri-
tion. A pro forma description, such as a boilerplate         ate and may expose the psychiatrist to legal
written statement that does not specify the circum-          liability.28,29,33,39
stances of the evaluation and that does not include             An important exception to confidentiality may
adequate explanation and discussion, is not sufficient       arise if the evaluee threatens his or her own safety or
to fulfill this obligation. The psychiatrist should ob-      the safety of others. If an evaluee discloses suicidal
tain a signed release that indicates that these points
                                                             ideation or intent or threatens to harm a coworker,
have been explained and that the evaluee consents to
                                                             supervisor, or employer, the psychiatrist is ethically
the release of information as meets present state and
                                                             and perhaps legally obligated to take appropriate
federal statutes, including HIPAA (Health Insurance
Portability and Accountability Act of 1996), if the          steps to ensure the safety of the evaluee or potential
psychiatrist is a HIPAA-covered health care provider.        victims. Courts have ruled that the duty to disclose is
   Despite the lack of confidentiality inherent in dis-      fulfilled by making direct disclosure to the evaluee
ability evaluations, psychiatrists are ethically obli-       with instructions to seek treatment, by reporting
gated to maintain confidentiality as much as possi-          findings to the evaluee’s treating physician, or by
ble. This necessity should also be explained to              communicating the existence of the problem to the
evaluees in the context of discussing the limits of          evaluee’s attorney.28
confidentiality. Information obtained should be re-          4. Forced Employee Evaluations
leased only to the party who has been authorized to
receive it. In addition, information that is not rele-          An employer may attempt to force an employee to
vant to the disability evaluation should be considered       undergo a psychiatric examination for nonpsychiat-
confidential. Consent to release information in dis-         ric reasons. In the event of workplace conflict, an
ability evaluations does not give a psychiatrist carte       employer may attempt to discredit or even terminate
blanche to reveal all information obtained during the        an employee by claiming that the employee is men-
evaluation to anyone who is interested in it. More-          tally unstable. In the course of such a conflict, the
over, within the specific legal or administrative pa-        employee who poses a problem for reasons other than
rameters of the disability evaluation, the psychiatrist      mental health may be forced to undergo a fitness-for-
should restrict disclosures of information obtained          duty evaluation. A retaliatory referral for psychiatric
during the performance of the evaluation.                    evaluation is occasionally made after the employee
   Inevitably, situations arise in which the psychia-        lodges a complaint of harassment or discrimination.
trist and the evaluee disagree on what information is        The stigma attached to a psychiatric evaluation may
relevant. The evaluee should be advised that al-             itself be used to discredit the employee.

S10                      The Journal of the American Academy of Psychiatry and the Law
Practice Guideline: Evaluation of Psychiatric Disability

   Such employer practices are potentially damaging          mum in regard to privacy and confidentiality. Most
to the employee and represent a misuse of psychiatry.        psychiatrists are already familiar with the Privacy
Psychiatrists should be sensitive to the possibility         Rule, and indeed, with often more stringent state
that their expertise may be misused in this way.40,41        laws regarding privacy and confidentiality. Many if
The use of a psychiatric examination as retaliation or       not most psychiatrists have already integrated these
as a deterrent against complaints is inappropriate. An       rules and obligations into their standard practices.
individual may feel stigmatized and narcissistically         Thus, the integration of HIPAA’s requirements
wounded by having to undergo a psychiatric evalua-           should not present a significant hardship. In addi-
tion. The nature of such an evaluation is often intru-       tion, should the Privacy Rule’s requirements come to
sive and distressing. Moreover, such referrals raise         be considered a national standard of care, a possibil-
questions of ethics that are not easily answered, given      ity that has not yet been addressed by case law, inte-
that assessments under these circumstances may be            gration of these practices would provide some
inherently unethical, analogous in many respects to          protection from liability that can arise in third-
the performance of unnecessary surgery.                      party evaluations from allegations of breach of
   There is no single and ethically clear way of re-         confidentiality.28
sponding to referrals that arise for reasons other than          The psychiatrist should be familiar with the regu-
legitimate concerns regarding the employee’s mental          lations regarding third-party evaluations, such as em-
health and its effect on job performance. The psychi-        ployment-related or disability evaluations.45 The
atrist who identifies a forced evaluation arising from       Privacy Rule permits covered health care providers to
an employment conflict or an attempt to discredit an         release an individual’s protected health information
employee should consider refusing the referral. Alter-       to an employer or a disability insurance company,
natively, the psychiatrist could conduct the evalua-         with that individual’s authorization. It allows disclo-
tion and note the nonpsychiatric nature of the refer-        sure without authorization in only limited circum-
ral, stating, “This referral appears to have been            stances.46 Although the Privacy Rule states that med-
generated by an unresolved workplace conflict rather         ical treatment of an individual cannot be conditional
than any change in the evaluee’s psychiatric or men-         on the individual’s signing an authorization for the
tal status,” in addition to offering an opinion regard-      disclosure of information, it expressly allows the phy-
ing the employee’s fitness for duty. Although this           sician, as a condition of performing the IME, to re-
statement may discomfit the referral source, the psy-        quire the evaluee to sign an authorization for the
chiatrist cannot ethically justify ignoring the context      release of protected health information to the third
of the evaluation.                                           party requesting the IME.47
                                                                 Disclosure of evaluations conducted in the context
C. The Health Insurance Portability and                      of litigation is subject to the rules of discovery of the
Accountability Act of 1996 (HIPAA)                           jurisdiction. However, the individual has a right to
and Confidentiality                                          receive, upon request, an accounting of disclosures of
   HIPAA42 is an extensive federal law covering              protected health information made by a covered en-
many different concerns, including the privacy and           tity. This accounting includes disclosures made in
security of health data. The Privacy Rule,43 promul-         litigation or in proceedings in which the covered en-
gated by HIPAA provisions, created standards re-             tity is not a party, when such disclosures are made in
garding the use and disclosure of an individual’s            response to a subpoena, discovery request, or other
health information by “covered entities.” The Pri-           lawful process.48
vacy Rule gives the patient a statutory right to knowl-          Disclosure in workers’ compensation continues to
edge about and control over what information is              be governed by state law. “[T]he Privacy Rule explic-
shared, with whom, and for what purposes.                    itly permits a covered entity to disclose protected
   Providers are responsible for determining their           health information as authorized by, and to the ex-
status as entities covered or not covered by HIPAA.44        tent necessary to comply with workers’ compensa-
Nevertheless, even if not covered, the psychiatrist          tion or other similar programs established by law that
may want to consider following the HIPAA guide-              provide benefits for work-related injuries or ill-
lines in regard to third-party evaluations. The Pri-         ness. . . .”49 Providers are still required to limit the
vacy Rule sets forth practices that represent a mini-        amount of protected health information disclosed to

                                     Volume 36, Number 4, 2008 Supplement                                         S11
Practice Guideline: Evaluation of Psychiatric Disability

the minimum necessary to accomplish the workers’              should be reported to the referral source and, if ap-
compensation purpose.                                         propriate, to the local law enforcement agency.
   The SSA has determined that consultative exami-
nations (CEs) conducted for the SSA fall within the           III. General Guidelines for the Psychiatric
range of functions included in HIPAA definitions of           Disability Evaluation
health care provider50 and treatment.51 The SSA has              The goal of the psychiatric disability evaluation is
indicated that the psychiatrist who is a covered entity       to correlate symptoms of mental disorder with occu-
under HIPAA is required by the Privacy Rule to pro-           pational impairment. This process consists of several
vide evaluees with a notice of patient’s rights and the       steps. The following are general guidelines for con-
psychiatrist’s privacy practices,52 and that the psychi-      ducting the evaluation.
atrist must receive a written acknowledgment of the
receipt of the notice or documentation of a good-             A. Clarify the Type of Referral With the
faith effort to obtain such an acknowledgment. Cov-           Referral Source
ered entities must still comply with all of SSA’s rules          The psychiatrist should clarify the type of referral
regarding disclosure of information and access to in-         and the role he or she is expected to play in an eval-
formation gathered and maintained while perform-              uation. Although this can be done by phone, a writ-
ing work for SSA. Some of these regulations limit             ten referral documenting the referral source’s expec-
disclosure of information.53                                  tations and the questions to be answered by the
   See Appendix II for resources regarding HIPAA              evaluation is preferable. The referral contact is the
regulations and medical practice and other topics re-         optimal time to make certain that the referral source
lated to third-party evaluations.                             understands the evaluating psychiatrist’s function
                                                              and role. For example, the psychiatrist can use the
D. Safety of the Evaluator                                    initial contact to advise the referral source that no
   The psychiatrist conducting a disability evaluation        treatment will be provided directly to the evaluee.
should be concerned about personal safety. Emo-                  At the initial contact, the psychiatrist may want to
tions associated with employment conflict can be as           clarify with the referral source his or her position
                                                              regarding communicating results of the assessment
extreme as those in interpersonal conflicts such as
                                                              directly to the evaluee, to avoid a misunderstanding
divorce and custody battles. The outcome of a dis-
                                                              on this important point at the conclusion of the as-
ability evaluation can result in lawsuits and the loss of
                                                              sessment. The referral source may expect or ask the
monetary benefits, employment, or a career. An em-
                                                              psychiatrist to discuss findings and opinions with the
ployee who is irate about undergoing a psychiatric            evaluee, especially if the evaluee is a difficult em-
examination or who is angered by a psychiatrist’s             ployee whom the referral source does not want to
report may become aggressive toward the psychia-              confront or whom the referral source has already
trist. An individual referred because of an anger-            confronted without effecting a change in behavior.
management problem, substance use, or paranoid                   Some psychiatrists are comfortable with the gen-
delusions may become overtly threatening.                     eral practice of advising the evaluee of the results of
   The psychiatrist should be aware of the setting and        an assessment. An evaluee may be better prepared for
context in which the evaluation is conducted. An              the likely consequences (positive or negative) if the
interview should not be undertaken when the psychi-           psychiatrist reveals the opinions that will be con-
atrist feels threatened in any way. He or she should be       veyed to the employer. However, the psychiatrist
clear about setting limits around evaluation inter-           may be more comfortable not discussing opinions or
views. For example, the psychiatrist evaluating a law         results with the evaluee and allowing the referral
enforcement officer should consider it routine to ask         source to convey the information. The personal in-
whether the officer’s firearm has been returned to the        terview is only one source of data on which opinions
employer pending evaluation. If not, the psychiatrist         should be based. Although an evaluee often asks for
may request that the evaluee refrain from carrying a          the psychiatrist’s opinion at the end of the interview,
firearm in the office. If any evaluee becomes threat-         the psychiatrist may not have reviewed all informa-
ening, the psychiatrist should consider terminating           tion necessary to formulate an opinion. In addition,
the interview. Threats made after the evaluation              the psychiatrist who advises an evaluee of an unfavor-

S12                       The Journal of the American Academy of Psychiatry and the Law
Practice Guideline: Evaluation of Psychiatric Disability

able opinion runs the risk of precipitating an angry           records may become significant factors should lit-
confrontation for which the clinician may be                   igation arise. However, with the approval of the
unprepared.                                                    referral source, the psychiatrist can request a
   Finally, the psychiatrist should bear in mind that          records release from the evaluee or permission to
offering opinions directly to the evaluee may create a         speak to a third party directly.
doctor-patient relationship and impose certain du-                The psychiatrist should personally review col-
ties on the psychiatrist.27,28 Exceptions to this rule         lateral information and should not rely solely on
are based on the ethics-based and legally prescribed           summaries from the referral source. Summaries
duties to the evaluee discussed earlier and arise only         can be of value, but they can omit important in-
in circumstances that represent an immediate and               formation or create distortions that reflect the re-
identifiable danger or threat of danger to the evaluee         ferral source’s biases. In addition, the person pre-
or others.                                                     paring the summary may not recognize the
                                                               psychiatric importance of some of the information
B. Review Records and Collateral Information                   and thus may not include all aspects of submis-
   Collateral information is an essential component            sions from the original sources.
of a comprehensive disability evaluation. Objective               The following delineates specific types of collateral
evidence of a psychiatric disorder and actual impair-          information that are useful or necessary for disability
ment is necessary to reach a conclusion that a psychi-         evaluations.
atric impairment is present. Some disability claims
                                                               1. Written Records
may encompass unique circumstances in which no
collateral information is necessary. Generally, how-           a. Job Description. The psychiatrist should always
ever, if the psychiatrist has no access to such infor-         request a written job description if one has not been
mation, subsequent revelation of inconsistent or               provided. Assessment of impairment requires an un-
contradictory facts can seriously undermine the con-           derstanding of the work skills required for a particu-
clusions and impeach his or her credibility.                   lar job. Without this understanding, determining the
   Collateral information in disability evaluations            impact of a mental disorder on the ability to perform
generally falls into two categories: formal written            specific job requirements is difficult.
records obtained in the course of usual professional
and business operations and third-party information            b. Psychiatric, Substance Use, Medical, and Pharmacy
obtained through personal interviews, witness state-           Records. These records may help the psychiatrist
ments, and depositions. No single source of informa-           understand an individual’s psychiatric symptom his-
tion is mandatory in conducting a disability                   tory and make a more accurate diagnosis of a disorder
evaluation.                                                    that could cause impairment in occupational func-
   The amount of collateral information available de-          tioning. Pharmacy records may be helpful in corrob-
pends on the circumstances of the claim. For exam-             orating claims regarding doctors seen for treatment,
ple, in personal injury litigation, discovery may result       medications and prescribed dosages, and possible
in the provision of all treatment records, witness             substance use. Treatment records also frequently
statements, depositions, and other background ma-              contain useful background information about
terials. In contrast, in cases such as an ordinary claim       sources of conflict or stress, evidence of personality
for Social Security disability benefits, collateral infor-     trait disturbance, and motivational factors that can
mation may be limited or difficult to obtain.                  affect occupational functioning. Medical treatment
   The referral source usually gathers and provides            records may reveal a disorder with psychiatric symp-
collateral information to the psychiatrist. If the             tomatology or may help rule out such disorders if
psychiatrist identifies additional information that            diagnostic laboratory or imaging tests such as EEG,
may be available, access to this information should            PET, and SPECT have been performed.
be requested. Requests for collateral information
should be directed to the referral source to the               c. Employment Records. Employment or personnel
extent possible, to ensure that the referral source is         records are an important source of collateral infor-
aware of all the records that are being reviewed.              mation, especially when impairment in functioning
The records reviewed and the source of these                   arises in the context of an individual’s current or

                                       Volume 36, Number 4, 2008 Supplement                                        S13
Practice Guideline: Evaluation of Psychiatric Disability

recent employment. Employment records may pro-                2. Third-Party Information
vide evidence of difficulties in work performance,               Information from third parties can be useful in
but they may also provide evidence of workplace fac-          corroborating an evaluee’s self-reports of history,
tors that could influence or precipitate a claim of           symptoms, and functioning. The reliability of all
disability.                                                   sources of collateral information should be taken into
   For example, good evaluations and the absence of           account, the inherent bias of all informants should be
performance problems can reduce concerns about                considered, and the consistency of reported informa-
the influence of workplace factors on a claim. In             tion should be scrutinized.
contrast, employment records that contain docu-
mentation of adverse events that precede a claim of           a. Family Members and Friends. These individuals
disability may raise concerns that the claim repre-           often have first-hand knowledge of a claimant’s
sents an attempt to address workplace conflict rather         symptoms, evolution of disorders, and functional
than work impairment resulting from psychiatric               abilities. However, family members may be as in-
symptoms. Records may include disciplinary or per-            vested in a disability claim as claimants themselves
sonnel actions that have threatened the claimant’s            and may distort or exaggerate reports of mental
job stability, perhaps leading to disability claims. Per-     symptoms in support of claims.
sonnel records from prior employers are often a valu-
able source of collateral information for similar             b. Treatment Providers. Conversations with treat-
reasons.                                                      ment providers, with the evaluee’s consent and when
                                                              legally permissible, can be helpful. Physicians and
d. Academic Records. Although they may also be                therapists, particularly those who are aware that a
difficult to obtain, academic records can shed light          legal or administrative disability claim is being made,
on an individual’s intellectual abilities, earlier            may be circumspect in written documentation. They
achievements or failures, limitations in functioning,         may be more forthcoming about their opinions if
or need for accommodation. The records may also               delivered in the course of a personal conversation.
indicate whether an individual has a history of behav-
                                                              c. Written Statements. Written statements, deposi-
ioral problems, an important indication of condi-
                                                              tions, or affidavits provided by third parties may be
tions including personality disorders.
                                                              informative. However, the psychiatrist should be
                                                              aware that such statements may be incomplete or
e. Other Experts’ Evaluations. Evaluations per-               biased. An employer or other party may be biased
formed by other mental health experts as well as              against the claimant, especially in adversarial situa-
those from other nonpsychiatric physicians can help           tions, such as personal injury litigation or workers’
determine the consistency of an individual’s reports          compensation claims, and may minimize symptoms
and allow comparison of diagnostic formulations.              or provide misleading information. Multiple witness
Evaluations that include psychological and neuropsy-          statements that seem to corroborate each other may
chological testing can be helpful in establishing the va-     be more reliable and credible.
lidity of self-reports, clinical symptom patterns, and
personality features of the individual.                       d. Surveillance. Surveillance at times is a powerful
                                                              source of collateral information. Nevertheless, such
f. Personal Records. A variety of other personal              information can be of limited value. A surveillance
records may be helpful, depending on the circum-              camera cannot capture an internal emotional state.
stances, as a source of collateral information. Prior         Even in cases of alleged physical injury, surveillance
and recent disability claims, criminal records, mili-         pictures or tapes capture only discrete periods of time
tary records, and financial records, including tax re-        and may not accurately reflect the individual’s overall
turns, can provide information relevant to the eval-          functional ability. With psychiatric disorders, a dis-
uation of a claim of current disability. An                   crete period of surveillance is even less likely to be
individual’s diaries or journals may also be useful, if       representative of total functional ability. However, if
contemporaneous and not kept for self-serving pur-            the evaluee claims that certain activities are impossi-
poses to validate a claim of disability.                      ble for him or that he never engaged in them, surveil-

S14                       The Journal of the American Academy of Psychiatry and the Law
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