AAPL Practice Guideline for the Forensic Evaluation of Psychiatric Disability
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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 S3Practice 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 LawPractice 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.
Volume 36, Number 4, 2008 Supplement S5Practice 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 LawPractice 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 S7Practice 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
pairment.20
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 LawPractice 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 S9Practice 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 LawPractice 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 S11Practice 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 LawPractice 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 S13Practice 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 LawYou can also read
