AAPL Practice Guideline for the Forensic Assessment*

1. Statement of Intent standards in the relevant jurisdiction and to complete This document is intended as a review of legal and the evaluation at hand. psychiatric factors to offer practical guidance in the 2. Introduction performance of forensic evaluations. It is a guideline developed through the participation of forensic psy- Forensic assessment is one of the basic building chiatrists who routinely conduct a variety of forensic blocks that form the foundation of the practice of assessments and who have expertise in conducting psychiatry and the law, in addition to report-writing these evaluations in a variety of practice settings. The and giving testimony in court. Similar to any foun- developmental process incorporated a thorough re- dation, the integrity of the process depends on how view that integrated feedback and revisions into the well each brick is laid upon the other. In psychiatry final draft. The final version was reviewed and ap- and the law, the quality of the final product depends proved by the Council of the American Academy of on the quality of the assessment, regardless of the Psychiatry and the Law on October 26, 2014. Thus, practitioner’s report-writing skills. the Guideline reflects a consensus among members Forensic psychiatrists are often called on to act as and experts about the principles and practices appli- consultants to the courts, lawyers, regulatory agen- cable to the conduct of forensic assessments. How- cies, or other third parties. The referring agent has a ever, it should not be construed as dictating the stan- specific psycholegal question that requires an expert dard for forensic evaluations. While it is intended to opinion, generally to advance a legal requirement. To inform practice, it does not present all currently ac- respond to that question, forensic psychiatrists gen- ceptable ways of performing forensic evaluations, erally conduct an assessment. and following its recommendations does not lead to This Guideline is the product of a consensus based a guaranteed outcome. Differing facts, clinical fac- on the available literature and knowledge in a broad tors, relevant statutes, administrative and case law, range of forensic assessments. The field of psychiatry and the psychiatrist’s judgment determine how to and the law, along with the rest of medicine, is in- proceed in any individual forensic assessment. creasingly using an evidence-based approach.1 The Guideline is for psychiatrists and other clini- Evidence-based medicine is defined by Sackett et al. cians working in a forensic role who conduct evalu- as “the conscientious, explicit, and judicious use of ations and provide opinions in legal and regulatory current best evidence in making decisions about the matters. Any clinician who agrees to perform forensic care of individuals” (Ref. 2, p 2). Sackett and collab- assessments in any domain is expected to have the orators made the point that all clinical assessments qualifications necessary to meet the professional are, to a certain extent, individualized, based on the unique factors of each case. * The AAPL Task Force on a Forensic Assessment Guideline consisted of: Graham D. Glancy, MBChB, FRCP(C) (Chair); Peter Ash, MD; Erica PJ Bath, MD; Alec Buchanan, PhD, MD; Paul Fedoroff, MD; Richard L. Summary 2 Objectives of the Guideline Frierson, MD; Victoria L. Harris, MD; Susan J. Hatters Friedman, MD; ● To provide practical guidance for the performance of forensic Mark J. Hauser, MD; James Knoll, MD; Mike Norko, MD; Debra psychiatric assessments. Pinals, MD; Marilyn Price, MD, CM; Patricia Recupero, MD, JD; ● Charles L. Scott, MD; and Howard V. Zonana, MD. To provide information for clinicians and trainees. ● To improve resources for teaching and training. The following members of the Task Force composed a Steering Com- ● To create a template to improve consistency of assessments. mittee for development of the Guideline: Drs. Glancy, Buchanan, ● Norko, Pinals, and Zonana. To help identify future research directions. Acknowledgments: The authors thank the following for their assis- tance and advice in preparing this Guideline: Jacquelyn Coleman, Elizabeth Ferris, Stefan Treffers, Dylan Glancy, and Kirsten Donovan. The recommendations in the Guideline do not set Disclosures of financial or other potential conflicts of interest: None. a standard of practice and are not a substitute for

Volume 43, Number 2, 2015 Supplement S3 Practice Guideline: The Forensic Assessment knowledge-seeking, experience, or training among The authors also drew attention to aspects of the practitioners. It is the individual responsibility of interpersonal relationships between parties, which each clinician to make appropriate decisions and may be significant. Kenneth Appelbaum,18 com- judgments that are based on the circumstances of menting on the article, cautioned mental health ex- each case. It is also recognized that policies and pro- perts to ensure the accuracy and veracity of their cedures change with the passage of time and from assessments. Mossman and colleagues19 attempted one setting to another. to measure the accuracy of assessments in a quanti- The writing of forensic psychiatric reports is be- tative manner. They compared multiple ratings per yond the scope of this Guideline. Report-writing is a evaluee and concluded that evaluators are very accu- vast topic in itself that has been covered in several rate. However, recent research has examined the other publications.3–9 quality of forensic reports and rated them as medio- The text provides an overview that is applicable to cre, noting that there was fair agreement between the various types of assessments: for criminal cases (com- evaluators’ conclusions and court findings.20 petence to stand trial and culpability); for risk or Wettstein struck an optimistic note, stating, “in dangerousness (of violence, sexual violence, or crim- the long-term future, we expect that quality improve- inal recidivism); and for civil proceedings (disability, ment at a more sophisticated level will transcend any- fitness for duty, testamentary capacity, guardianship, thing discussed heretofore” (Ref. 11, p 172). This child custody, malpractice, and civil commitment). view built on his previous work with Simon,21 in which It is intended to complement, not replace, existing they described general guidelines, shaped by the ethics practice guidelines published by the American Acad- principles of general and forensic psychiatry, as well as emy of Psychiatry and the Law (AAPL) that focus in case law and statutes. Such guidance was intended to more depth on particular areas of evaluation. help practitioners maintain the integrity of forensic psy- chiatric consultation and examination. 3. Quality Improvement in Forensic Practice 4. Ethics Foundation Several studies and articles have assessed the qual- The American Medical Association’s Code of Eth- ity of forensic psychology and psychiatry prac- ics states that “physicians have an obligation to assist tice.10–16 A review of the literature concluded that in the administration of justice.”22 Forensic psychi- the level of practice falls short of professional aspira- atrists are physicians who are trained to diagnose and tions for the field, although there have been incre- treat patients within the ethics principles embedded mental improvements during the 1990s.12 No stud- in the doctor–patient relationship. However, as Paul ies to date have observed forensic psychiatric Appelbaum23 has stated, the role of the forensic psy- interviews, although some, mainly in the field of psy- chiatrist in assisting court and other agents some- chology and the law, have looked at the content of times demands that the psychiatrist step outside of forensic reports. In particular, these have examined the doctor–patient relationship. The psychiatrist is the psychological tests used in criminal forensic eval- primarily serving the interests or needs of the court, uations,13 emotional injury cases,14 child custody as- the retaining attorney, or another third party, but sessments,17 and neuropsychological assessments.16 their interests may or may not serve those of the The results demonstrated significant inconsistencies evaluee.24 Therefore, in this context, the forensic and variable standards. One study,15 for instance, noted practitioner strives for objectivity in seeking to an- poor agreement on such basic points as the presence of swer a psycholegal question. a mental disorder and the psychiatric diagnoses submit- The ethical practice of forensic psychiatry has ted by opposing experts. Given these findings, it is im- therefore been a subject of significant discussion in portant to enhance the potential for consistent practices the psychiatric literature, with competing, comple- that can inform forensic assessment. mentary, and sometimes conflicting models of ethi- In 2010, Griffith and colleagues4 conceptualized cal practice offered.23,25–36 Stone37 has stated that the forensic psychiatric report as a performative nar- the role of the forensic psychiatrist is so framed that rative. Although their article concentrated on the the formulation of ethics guidelines is impossible. written report, it suggested that psychiatrists “lis- This view was countered by Paul Appelbaum,23 who tened hard to the voices they heard” (Ref. 4, p 42). attested that the primary value of forensic psychiatry

S4 The Journal of the American Academy of Psychiatry and the Law Practice Guideline: The Forensic Assessment is to advance the interests of justice. With this in Because the accuracy of the information received mind, ethical practice can be guided by the two prin- enhances the validity of the psychiatrist’s conclu- ciples of truth-telling and respect for persons. Bear- sions, Heilbrun et al.24 likened the forensic psychia- ing these principles in mind, we can distinguish be- trist to an investigative journalist, recommending tween our clinical therapeutic and forensic roles. that third-party information be elicited from a vari- Weinstock and colleagues38 noted that the conflict- ety of sources. Although collateral information may ing values of law and medicine make balancing these be helpful in general psychiatry, its importance is roles a formidable task. They argued that traditional magnified in forensic psychiatry. Section 5.3, Collat- medical ethics remains the ideal goal and that the eral Information, is devoted to the collection of individual practitioner must attempt to resolve the third-party (or collateral) information. ethics-related problems that arise. Griffith27 intro- duced the notion of cultural formulation. The foren- 5. Assessment Process sic evaluator seeks the sociocultural truth about the 5.1. Setting the Stage subject in the formulation of the particular behavior before the court. By using cultural formulation in The success of the forensic assessment begins with careful attention to detail in the initial agreement this context, the forensic psychiatrist can come to a with the retaining party. In the initial contact with better understanding of the evaluee’s experience, the referring agent, there are several determinations while appreciating the evaluee’s psychosocial envi- to be made by the forensic expert, such as whether ronment, thereby constructing a fuller and more ac- there are any conflicts of interest, limitations to ob- curate presentation of the data. jectivity for the psychiatrist in the circumstances, and Other authors have developed syntheses of these limitations based on state medical boards’ rules re- frameworks based on compassion,35 robust profes- 28,29,31 garding licensure to provide expert evaluation or tes- sionalism, and an acknowledgment of the ten- timony. As well, the expert must determine whether sion in holding simultaneously to both medical eth- he has the requisite knowledge, skill, and experience ics and the demands of the criminal justice 32,33 to accept the case. The psychiatrist’s qualifications in system. The AAPL Ethics Guidelines call for ad- relation to a specific case can be evaluated by a dis- herence to honesty, striving for objectivity, and re- cussion with the referring party concerning the pre- spect for persons in the organization’s attempt to cise psychiatric question(s) to be answered and the generate a workable code of ethics for forensic psy- expert’s role in the case.7,40–42 In addition, experts 39 chiatric practice. must evaluate whether they have the time and re- In a general psychiatric practice, the patient pres- sources necessary to respond to the retaining attorney ents signs and symptoms to a psychiatrist. The psy- within the required time frame. Establishing with the chiatrist then makes a diagnosis and formulation to referring party a time frame for the completion of the help the patient understand the symptoms, with a evaluation is an important detail in properly setting view to treatment that will help to resolve the symp- the stage for the assessment. If the expert does not toms. In forensic psychiatry, the situation may be have the time or resources, a referral to a colleague complicated by the attempt to apply specific signs may be in order. Summary 5.1A outlines the vari- and symptoms to legal criteria. Furthermore, eval- ables that the expert must consider in setting the uees in forensic contexts may exaggerate or minimize stage for a case. their symptoms for several reasons: for example, to maximize their injury in civil cases or to minimize Summary 5.1A Setting the Stage their involvement or culpability in criminal cases. Forensic psychiatrists are concerned with the accu- Before conducting an assessment, the expert must: ● Determine whether there is any conflict of interest. racy of the received information that forms the basis ● Determine whether there are limitations to objectivity. for their conclusions. Consequently, in performing ● Identify limitations regarding licensure. assessments, they are particularly concerned about ● Determine what expertise is necessary. dissimulation and malingering of symptoms and dis- ● Estimate the time and resources needed to respond to the referring agent. orders (discussed in Section 10.5, Malingering and ● Understand the role of the expert in the case. Dissimulation).

Volume 43, Number 2, 2015 Supplement S5 Practice Guideline: The Forensic Assessment

The potential for a conflict of interest, or even the and the expert. In general, written terms of agree- appearance of one, can compromise objectivity. ment specify the expert’s hourly rate, an estimate of Conflicts may be legal (when the expert has partici- the time needed for the consultation, and the ar- pated in a case for the other party), monetary (when rangements for payment of a retainer fee, against the expert has a financial interest in the outcome), which the work will be charged and which will be administrative (when the expert serves in an official replenished as necessary. Examples of such retainer capacity that may create an interest in the outcome), letters are available.40,41 Fixed fees are common in educational (e.g., when the expert is a member of a some jurisdictions for some types of assessments, training program and thus may be privy to informa- such as competence to stand trial.36 tion about the case from multiple perspectives), and personal (when the expert has a relationship with an 5.2. Confidentiality individual involved in the case).7 An examiner may The flow of information in a forensic assessment is also have political or ideological conflicts of interest. a central concern. As noted in the AAPL Ethics The possibility of conflicts should be explored during Guidelines, “the practice of forensic psychiatry often the initial contact with the referring agent, but con- presents significant problems regarding confidential- flicts may come to light only later in the case. In those ity” because information is always released to the situations, the expert should determine whether the retaining party and may be released to other par- conflict warrants recusal and referral to a colleague. ties.39 Thus, evaluees must always be informed of In many jurisdictions, plaintiffs cannot be re- the limits of confidentiality, the persons with quired to travel more than a specified distance to whom the information will be shared, and the pur- attend an assessment. As a result, the retained expert pose of the interview. Evaluees may require fre- may be required to travel to a mutually agreed upon quent reminders of the limits of confidentiality location to assess the plaintiff. If the assessment is to during the course of an assessment, especially take place in a state where the expert does not hold a when multiple interviews are conducted over a medical license, the expert must determine whether prolonged period. the state requires that a forensic psychiatrist hold a Closely associated with the notice about the in- medical license to conduct an assessment before tended disclosure of the assessment results is the agreeing to accept the case.43 need to make clear to the evaluee the unusual role Discussions with the referring agent typically in- of the examiner. Many evaluees are accustomed to clude asking what collateral information is available dealing with health care professionals under a set and will be provided by the referring agent (see of expectations appropriate to a treatment rela- Section 5.3, Collateral Information). These dis- tionship. A limited physician–patient relationship cussions should not be treated as sources of data or may still be present, even in forensic assessments, listed as such in the final report.44 Throughout the placing some continued obligation on the physician- assessment process, the expert should seek to iden- examiner.36,45 However, the forensic expert must tify gaps in the available data and make efforts to make it clear that the assessment is not for the pur- obtain the appropriate data from the referring poses of treatment and that the rules of confidential- agent or through releases of information signed by ity are different and governed by the requirements of the evaluee. the legal system.36,46 The initial discussion is often followed by a writ- ten letter of agreement between the retaining agent Summary 5.2 Confidentiality Evaluees must be informed of: Summary 5.1B Retainer Letter ● The limits of confidentiality, including: The retainer letter might include: ● That the evaluation will be sent to retaining party. ● The specific psycholegal question. ● That the evaluation is not for treatment. ● The role of expert. ● Legal matters, including: ● The time frame, with any deadline. ● The mandatory and permissible reporting requirements. ● An estimation of the time needed for the assessment (when ● The possibility of disclosure in open court. appropriate). ● The right to decline to answer questions. ● The fee structure (where appropriate).

S6 The Journal of the American Academy of Psychiatry and the Law Practice Guideline: The Forensic Assessment

The limits of confidentiality are determined, in the assessment, and the likely uses of the assessment part, by which of the legal participants in the matter results.7 has retained the psychiatrist, with different warnings Written documentation of the discussion about being appropriate, depending on whether the psychi- confidentiality should be made to establish a record atrist is working for the defense, the prosecution, or regarding what the evaluee was told about the nature the court.47 Specifically, the defense expert can in- of the assessment.47,57 form the evaluee that, if the assessment is not going Opinions vary regarding whether an evaluee to be helpful to the case, the attorney may be able to should be warned that malingering on his part will be keep it confidential as part of attorney work product. assessed. Such warnings are generally not recom- In some jurisdictions, the evaluee’s understanding of mended immediately before administering a test for the limits of confidentiality is assessed before pro- malingering, because the effectiveness of the test may ceeding.48 In addition, use of an evaluee’s self- be compromised.57–59 If the evaluator decides to incriminating statements given during a certain type provide a caution regarding the assessment of malin- of forensic assessment may be limited or excluded at gering, statements to the evaluee can be included in subsequent criminal trials.48–50 In some jurisdic- the informed-consent section of the written report. tions, reports written in one context may be used For example, the evaluator may state that the evaluee years later in other contexts. Although forensic re- was informed at the beginning of the interview that ports are often initially protected, if they are intro- methods of detecting exaggeration and poor effort duced as evidence in testimony, they become acces- would be part of the assessment process, or that the sible in the public domain. evaluator was assessing the evaluee’s diagnosis and The limits of confidentiality were complicated by that it was important that all questions be answered passage of the Health Insurance Portability and Ac- as accurately as possible (Ref. 56, p 244). countability Act of 1996 (HIPAA),51 which intro- After the expert obtains informed consent for the duced the Privacy Rule mandating confidentiality of assessment, the evaluee should be given an opportu- all medical assessments by covered entities (i.e., nity to ask questions regarding the process. If there health care providers who electronically transmit in- are unanticipated questions, such as a request to formation). There are some exceptions to the Privacy make an audio- or video-recording of the examina- Rule for assessments ordered by a court, but these tion or to have a third party present during the as- exceptions do not apply to assessments requested by sessment, the examiner should consider contacting an evaluee’s attorney or some other third-party re- the retaining attorney with this new information questors, such as the Social Security Administra- before proceeding. In general, if an evaluee is seek- tion.45 Thus, it is prudent to secure a release of in- ing to record the interview, the examiner should formation from the evaluee and to provide a Notice do the same and retain a recording of the session. of Privacy Practices if the evaluation is not ordered by The evaluee also has the right to contact counsel a court.52 These forms can be found in the litera- regarding questions about the assessment process ture.41,47 Some state laws may create more stringent and should be allowed to do so before resuming confidentiality requirements, and evaluators should the examination. be familiar with their jurisdiction’s requirements. Although the informed consent of the evaluee is Other limits of confidentiality may include an eval- not necessary for some types of assessments (e.g., uator’s duty to report child or elder abuse or ne- court-ordered assessments for competence to stand glect,53 a duty of disclosure related to serious threat trial or involuntary commitment), the evaluator of harm to the evaluee or to third parties (the duty to must avoid coercion in the interview. Regardless of warn),54 and other duties related to a specific juris- its subtlety, coercion is inappropriate, and the eval- diction.55,56 If any of these duties arises, the expert uee or any collateral source should be free to decline should consult with supervisors, peers, or an attorney to answer any or all questions.60 However, the eval- and discuss the potential release of information with uator must also give the evaluee appropriate notice the referring agent before making the disclosure. that refusal to participate in some or all of the assess- Collateral sources interviewed should also be given ment may be noted in the report in a court-ordered notice of the limits of confidentiality, the purpose of assessment.46

Volume 43, Number 2, 2015 Supplement S7 Practice Guideline: The Forensic Assessment

5.3. Collateral Information Experts should endeavor to obtain all necessary and Collateral sources of information, when available, relevant information as early in the process as possi- are usually an important element of the forensic as- ble, as subsequent revelations of contradictory or in- sessment. With the consideration of multiple data consistent data may change the expert’s opinion. sources, varying points of view may have to be rec- onciled. Memory deficits, effects of treatment, and Summary 5.3A Collateral Information malingering may affect the evaluee’s statements. Col- Collateral information is obtained from: lateral information may add to or complement the ● Written records collected from various sources. evaluee’s account and may be compared with the ● Medical and psychiatric records. evaluee’s account to help detect malingering and as- ● Interviews with various sources who are familiar with the patient. sess reliability. However, the biases of various report- ers also should be considered.16 Collateral information for the expert’s review may If the psychiatrist is retained by the court or by the include written records, recordings, and collateral in- attorney of the evaluee whose medical records are terviews. Records from police, psychiatric and med- being sought (e.g., a defendant in a criminal matter, ical treatment, school, the military, work, jail, and a former patient in a malpractice case, or a litigant financial institutions may be appropriate, depending seeking damages), the psychiatrist may obtain writ- on the type of assessment. Reviewing assessments ten consent directly from the evaluee. However, in performed by other experts may help determine the most cases, requests for information or collateral in- consistency of reporting; as well, psychological test- terviews generally should be made through the re- ing scores and brain imaging may be relevant.46 taining attorney. If hired by the court, the psychia- The expert opinion may benefit from interviews trist may also contact both attorneys as required. In with several sources, including family members, col- some situations, the retaining attorney may have to leagues, friends, victims, and witnesses, and the pursue a court order to obtain collateral information sources will vary by type of assessment. The inter- requested by the expert. views may be arranged through the referring agent or The expert should perform a personal review of through the court. At the start of the interviews, par- relevant information whenever possible and avoid ticipants should be warned about the limits of confi- relying on summaries prepared by attorneys, which dentiality, and the purpose of the interview should be may contain distortions or omit clinically important explained. The warning should include informing details. The psychiatrist may identify additional the source of how the information may be used. It is sources of information that is missing from an attor- advisable to inform collateral contacts that every- ney’s summary, which should then be sought. If the thing said is on the record and may be used in open psychiatrist works with a team, other members of the court and made public, so that they can consider in team may summarize large volumes of information, advance what information to share. As with inter- although the psychiatrist signing the report accepts views of evaluees, interviews of collateral informants responsibility for its content. However, while the should involve open-ended questions with varying psychiatrist should be prepared to address the con- focal points. Leading questions should be avoided. tent of the report, team members who have gathered The collateral information to be sought depends or generated information may also, although rarely, on the specific question posed by the referring agent have to testify. and the circumstances of the case. Collateral data are In general, the evaluator should review relevant especially important in reconstructive assessments, documents as they become available. Reviewing col- such as those for sanity, testamentary capacity, and lateral data before conducting interviews provides disability, in which the evaluee’s mental state in the the expert with a more comprehensive understand- past is the focus.6 Alternatively, in a competency as- ing of the case, so that the expert may ask additional sessment, police reports and allegations against the appropriate questions and note any inconsisten- evaluee, as well as the reasons the court or attorney cies.42 However, in certain circumstances, reviewing are requesting the assessment, are particularly rele- information before an interview may not be desirable vant. A review of these materials may lead the psy- because of, for example, concerns that the written chiatrist to request additional materials or interviews. information may bias the evaluator. In some cases, a

S8 The Journal of the American Academy of Psychiatry and the Law Practice Guideline: The Forensic Assessment review may not be possible. For example, in civil Summary 5.3B Useful Records in Criminal and Civil Evaluations cases, a judge may rule to exclude a plaintiff’s history Personal records: of civil litigation, including previous alleged damages ● Past and present mental health treatments ● or awards, if the judge finds that the prejudicial value Substance abuse treatment ● Medical history and treatments of a prior lawsuit outweighs its probative value. The ● Psychological testing results forensic evaluator should therefore clarify with the ● Expert declarations and prior forensic reports referring agent whether there have been rulings that ● Educational history exclude any evidence. Furthermore, some records ● Occupational history ● Military history may not be available or may not be reviewed be- ● Arrest history cause of time constraints. Additional sources of ● Histories of detention and incarceration information, such as medical records, may not be ● Personal notes available or reviewed in some types of evaluations, ● Diaries ● such as competence assessments, although re- Computer files ● Cellular telephone records and text messages gional practices may vary.11 Collateral data facilitate objectivity and may aid in Criminal assessments: ● Police reports opinion formulation, furthering understanding of ● Grand jury minutes the evaluee’s mental state at various points in time, ● Investigation reports such as before an accident or at the time of the of- ● Witness interviews fense. Criminal defendants’ or civil plaintiffs’ reports ● Police interrogation tapes and interview transcripts ● and recollections may differ from more objective and Tapes of jail conversations contemporaneous records. Such data may also help Civil assessments: in assessing accuracy or malingering. ● Job description ● Work investigations and employment hearings All relevant sources of information should be ● Educational history listed in the report, as well as any information that ● Depositions of the plaintiff, treatment providers, and other relevant was requested but not received. The expert may parties modify the opinion should relevant additional infor- ● History of lawsuits ● mation become available later. Undercover investigation reports or videotapes ● Financial institution records 5.3.1. Interviews by Other Mental Health Professionals In certain jurisdictions, and particularly in multi- disciplinary team settings, interview data gathered by 5.3.2. Additional Sources ancillary mental health professionals may be used The evaluator must decide which collateral and incorporated into the forensic evaluator’s report. sources to contact. In determining how many collat- These additional mental health professionals may as- eral contacts are sufficient, the potential yield of ad- semble data from collateral informants. For example, ditional contacts must be balanced with the expen- they may gather psychosocial data by interviewing diture of effort to contact them. For example, if a multiple sources, such as family, teachers, and other particular source can provide critical information, social contacts of the evaluee. When relying on data concerted efforts and several attempts to pursue this collected by another professional, the primary evalu- source may be appropriate. There are no rules about ator should be able to attest to the general reliability which collateral contacts are necessary in any given of the ancillary professional’s work in contributing to case, although, generally, the closer an individual is the evaluator’s opinion. In some cases, aspects of the to the evaluee and the closer he was to the evaluee data may be lacking in sufficient detail at critical during the time frame of the incident, the more use- junctures, or points may need further clarification. In ful his information will be in helping to understand such cases, the primary evaluator may ask the ancil- the context. Collateral sources should be selected be- lary professional to supply further information or to cause they will provide information directly relevant reinterview a source, or the primary evaluator may to the questions at hand. Such sources typically follow up by reviewing data or reinterviewing include family, friends, partners, coworkers, and sources. witnesses.

Volume 43, Number 2, 2015 Supplement S9 Practice Guideline: The Forensic Assessment

Internet searches regarding the evaluee can also Summary 5.3.3 Criminal Assessments provide useful information. Social networking sites Collateral information to assess criminal responsibility: and other Internet social forums may contain infor- ● Police reports ● mation about the evaluee that conflicts with data Witness statements ● Contemporaneous medical and psychiatric records provided by the evaluee or others, warranting further ● Collateral sources examination to contextualize this apparent conflict. An evaluee’s online persona may constitute impres- sion management or posturing, as people often be- Although the evaluator in any criminal case should have or present themselves differently online than in be familiar with the officially documented criminal person. It is also possible that the online information allegations, whether the content of the police report is more accurate than what the evaluee is telling the is included in a specific criminal forensic evaluation police and experts. report depends on the type of case (e.g., competence 5.3.3. Criminal Assessments to stand trial or criminal responsibility) and differ- ences in jurisdictional practice. In evaluations to de- Police reports and other official criminal records. In termine criminal responsibility and aid in sentenc- criminal assessments, documentation of the criminal ing, evaluators may provide a succinct summary of allegations constitutes key data. Generally, this doc- the police report or official allegations in the body of umentation is found in a police report or a series of the report, to help the reader understand the direc- police reports from the different officers involved in tion of the opinion. When summarizing police re- an arrest. Additional sources may include grand jury ports or allegations, the expert risks misrepresenting records or transcripts of grand jury proceedings. aspects of the allegations by quoting selectively or by These reports can be critical to forensic assessment omitting details that may prove to be relevant later in because they provide the factual allegations that serve the proceedings. Thus, evaluators should recognize as the basis for criminal charges. For a pretrial assess- that such summaries must be carefully constructed, ment, these data can be used to help ascertain to avoid bias. Other approaches are to append the full whether the evaluee understands the nature and police report or to simply list it as a source of 36 meaning of the charges. In some cases, it may be information. helpful or necessary to read or to have the evaluee read the actual police report, so that the evaluator can Contact with law enforcement and legal officials. In be sure that the evaluee has accurate information criminal contexts, one of the important collateral about the allegations and the identity of the wit- sources can be information obtained from police of- nesses. An evaluator’s review of the content of the ficers and witnesses to alleged criminal conduct. police report can also help in assessing the evaluee’s However, there are some difficulties posed by tele- rational and factual understanding of the charges. phoning police officers and other officials. It may be The police report and other official documenta- necessary to call a police officer outside of the evalu- tion of the charges, such as witness statements, may ator’s regular business hours, as officers may be avail- provide critical information related to the evaluee’s able only during evening or night shifts. Officers may conduct or thinking at the time of the alleged offense. be surprised to receive a cold call from a forensic Such documentation can help the evaluator con- evaluator and may not be willing to speak. Some may struct a picture of whether the defendant may have want to review the request for an interview with their demonstrated symptoms of a mental disorder rele- superior before agreeing to it. For all of these reasons, vant to the question of criminal responsibility. Sim- the evaluator may have to discuss such calls with the ilarly, in sentencing assessments, the evaluator referring attorney before making a call to a police should use police reports and official documentation officer. The prosecuting attorney may not want the of the offense to enhance understanding of the details evaluator to interview the officer, and jurisdictional of the criminal conduct and in elucidating patterns of provisions may dictate how to proceed. conduct and the relationship of mental illness or sub- Once an interview with a police officer has been stance use to the crime. This understanding, in turn, granted, it is important to remind the officer of the can help inform treatment recommendations if evaluator’s role. Although police officers and wit- needed. nesses may not have the same confidentiality con-

S10 The Journal of the American Academy of Psychiatry and the Law Practice Guideline: The Forensic Assessment cerns as evaluees, they should understand that the a civil proceeding, the interview would generally be information revealed could be used in open court scheduled in an office, but for an assessment stem- and in the court report. In interviewing a police of- ming from a violent crime, the interview may be held ficer, it is important to avoid leading questions and to in the correctional facility where the evaluee is de- probe the officer’s recollection to draw out facts in tained. As with all psychiatric interviews, attention detail (e.g., how the criminal defendant was acting, must be given to the environmental aspects of the such as observations that the defendant was mum- setting, such as lighting, ambient temperature, seat- bling to himself or making unusual or bizarre state- ing arrangements, safety, and the presence of a desk ments). Also, evaluators should understand that, be- or table so that the interviewer can take notes by hand cause officers face numerous situations involving or on computer. persons with apparent mental conditions, their rec- ollection of what, for them, is a routine event may be limited.61,62 When they do remember offenses in Summary 5.4.1 Interview Process: Physical Setting detail, they typically and appropriately describe their ● Ensure safety of evaluator and evaluee. ● Establish entry and exit strategies. observations in lay terms, and a skilled evaluator will ● Ensure maximum privacy. attempt to understand these descriptions in clinical ● Consider and negotiate the presence of third parties. terms where appropriate. It may also be necessary to pursue questions more rigorously if an officer re- counts only the basic facts and fails to address aspects Each specific setting gives rise to unique consider- of the encounter relevant to the evaluee’s mental ations for the interview. In one survey of state- state. certified forensic experts, distressing incidents were 5.3.4. Civil Assessments seen no more frequently in forensic practices than in nonforensic clinical work.63 That said, forensic pro- When performing civil assessments that involve fessionals should attend to areas of possible concern the workplace, it is often helpful to obtain a job de- and seek consultation as needed to help identify strat- scription and a personnel file, which may include egies for safety, if necessary. Strategies noted by re- investigations and employment proceedings. In ad- spondents to the survey by Leavitt and coworkers63 dition, it may be possible to obtain extensive data included keeping doors to the interview room open, such as personal notes and diaries, computer files, having a third party close by, and informing others of and video recordings or undercover investigational one’s whereabouts. reports. Counsel may also be able to supply data from In a private office, consideration should be given lawsuits as well as transcripts from depositions.46 to entrance and exit strategies for the evaluee, who, For litigation involving claimed mental harm, the like many psychiatric patients, may wish to remain expert should request important legal documents. anonymous and avoid other patients and office staff For example, the plaintiff’s complaint outlines the or who may wish to terminate the assessment emotional damage claimed and its relationship to the abruptly. This consideration may be particularly im- event or circumstance that is the subject of litigation. portant for evaluees attending sensitive assessments, The complaint is usually countered by a list of spe- such as those for complicated cases involving paren- cific questions (interrogatories) from the defense, fol- tal rights or sex offenses. In an attorney’s office, the lowed by the plaintiff’s answers to these interrogato- setting must also provide privacy for the evaluator ries. Additional records are commonly requested and and evaluee. may be useful (see the list in Summary 5.3B). Exit strategies should also be considered for the 5.4. The Interview evaluator. An evaluee may become threatening or aggressive as the result of an anger management 5.4.1. Physical Setting problem, substance use, paranoid delusions, or the The physical setting for forensic assessment inter- conflict-laden circumstances underlying the assess- views can vary from the private office of the forensic ment.45 The objectivity of the assessment may be psychiatrist, to an attorney’s office, to a correctional affected if the evaluator does not feel safe, either be- facility. The site is often determined by the purpose cause of the environment or because of the evaluee’s of the assessment. For example, for an assessment for conduct.

Volume 43, Number 2, 2015 Supplement S11 Practice Guideline: The Forensic Assessment

Correctional facilities offer unique challenges as a with what he deems to be irrelevant questions about setting for forensic assessments. Arrangements must the past. In many cases, evaluators must be flexible, be made in advance to secure entry into the facility as, even with a planned agenda for the interview and to ensure that the evaluator is allowed to bring schedule, there may be a need to reverse the order in appropriate recording materials such as paper, writ- which data are gathered. For some types of assess- ing instruments, a computer or tablet, and audio or ments (e.g., competence to stand trial), only one in- video equipment. Safety is of fundamental impor- terview may be necessary. In other assessments, mul- tance for both the evaluee and the evaluator. If tiple interviews may be needed to cover the breadth needed for the safety of the evaluator, assessments and depth of the terrain in a complex case. The eval- may be conducted by telephone, with the interviewer uator must decide on a plan for the course of the and the evaluee separated by a Plexiglas partition. In interviews. certain circumstances, the psychiatrist may wish to Although focused questions or forensic assessment have a third party present to ensure safety or to have instruments may be used in the interview, the general an objective observer in case of a litigious or difficult style should consist of open-ended questions. This evaluee. If the presence of a correctional officer is strategy enables a neutral exploration of the evaluee’s necessary for safety, efforts should be made to pre- narrative, state of mind, and style of presentation.7,64 serve the confidentiality of the evaluee (e.g., by hav- Open-ended questions can help the individual to be- ing the officer observe through a window).6 come comfortable with talking to the evaluator and The presence of others during the forensic assess- enable the examiner to establish a rapport with the ment must be considered in advance. The evaluee’s evaluee before moving to more difficult material attorney may ask to be present, or the evaluee may about the forensic matter at hand.36,45 Closed ques- request that a spouse be present. Teaching institu- tions, which demand a yes-or-no answer, may have tions often request that students, residents, interns, their place in specific matters, but, as part of the or fellows be allowed to observe as part of their learn- strategy for seeking objectivity and honesty, the eval- ing process. All of these possibilities should be con- uator should guard against leading questions or ques- sidered before conducting the assessment, not only tions that limit responsiveness from the evaluee. to accommodate others physically in the setting, but It is an important characteristic of the forensic also to avoid potential skewing or biasing of the in- assessment that the evaluator, unlike a clinical inter- terview because of the presence of others. Discus- viewer, must take a questioning or skeptical ap- sions about these factors with retaining attorneys proach to the interview.7 It is also important not to may be necessary before the interview. be judgmental or biased against an evaluee. The ap- 5.4.2. Interview Style proach, then, must include ongoing hypothesis test- ing until conclusions can be reached. Some support is In establishing a style and structure for the inter- necessary, for example, in ensuring the comfort of view, the evaluator may wish to begin by gathering the evaluee. Likewise, empathy is not entirely off general background information and mental status limits in a forensic assessment. Kenneth Appelbaum data. Alternatively, an evaluator may cover the most describes “forensic empathy” as the quest for “aware- critical material first, and then fill in other areas sub- ness of the perspectives and experiences of interview- sequently. This approach is especially well-suited to ees,” (Ref. 18, p 44) to allow their voices and con- certain situations: for example, when the evaluee is cerns to be aired in the assessment process. Shuman65 unlikely to remain cooperative over an extended pe- offers a complementary perspective on empathy, riod, when the evaluee may become unduly emo- which is to differentiate receptive from reflective em- tional, or when the evaluee may become impatient pathy. The former corresponds to Appelbaum’s de- scription, in that Shuman describes receptive empa- Summary 5.4.2 Interview Process: Interview Style thy as the “perception and understanding of the ● In general, open-ended questions experiences of another person.” Reflective empathy, ● Neutral attitude however, is problematic, in that it involves commu- ● Forensic empathy nicating an “interpretation or understanding to the ● Awareness of countertransference defendant in a manner that implies a therapeutic ● Repeated interviews, if necessary alliance” (Ref. 65, p 298). Such an implication may

S12 The Journal of the American Academy of Psychiatry and the Law Practice Guideline: The Forensic Assessment undermine objectivity and respect for persons, as it that written notes added to the records or materials may work against the warnings about limits of con- may be subject to cross-examination. Therefore, care fidentiality and the lack of a therapeutic relationship should be taken when recording in writing the con- that are critical to ethical forensic practice. Recent tent of discussions with attorneys, ad hoc aides- work has concluded that empathy may help promote me´moire, or memoranda. rapport, and therefore experts may use a moderate degree of empathy.66 Thus, the use of clinical skill is Summary 5.4.3 Interview Process: Recording essential to the assessment process, but the expert ● must be vigilant about the manner in which such Take careful notes. ● Consider audio- or video-recording the interview. skills are deployed in the forensic assessment. ● Notify evaluee of the recording. The evaluator must also be vigilant for signs in ● Retain all materials, as per jurisdiction. himself of emotional reaction to the evaluee or the circumstances of the case. Awareness of inappropri- ate emotional responses to the case may well lead the There is a debate over recording interviews. The 7,67 expert to self-examination of those reactions. The concerns raised regarding audio- and video-recording of feelings and attitudes of the evaluator prompted by a interviews are similar. A review of case law for the case can be described as a forensic example of coun- report of the AAPL task force on video-recording tertransference. Gutheil and Simon offer several ex- concluded that recording is an acceptable but not a amples of such a phenomenon in forensic practice, mandatory procedure.68 The usual purpose of re- characterized by preoccupation with the examinee, cording is the creation of a complete record that may secondary posttraumatic stress disorder (PTSD) be reviewed at a later date for the expert’s report or symptoms in the examiner, overimmersion in the testimony preparation or as evidence at trial. In par- evaluee’s world view, personal conflict with the at- ticular, a contemporaneous recording of the evaluee torney, overidentification with and overacceptance in a disturbed mental state that is produced at trial of the attorney, and defensiveness in response to an some time later, after he has recovered, can signifi- attorney (Ref. 67, pp 84–7). cantly enhance the credibility of the testimony. The review of symptoms with a forensic evaluee is Although the AAPL task force determined that one area in which there is a close connection to ordi- video-recording the forensic interview is ethical, it nary clinical work.7 The review of symptoms should did not offer a blanket endorsement of the practice. be conducted in a manner similar to the way in which The advantages and disadvantages are reviewed in the expert conducts it in clinical practice, to assure the guideline.68 Video recordings are routinely used the reliability of the evaluator’s findings and to foster in cases of child sexual abuse, as they allow the vic- credibility about the assessment process leading to a tim’s early statements to be preserved, and they may forensic opinion. Since questions about symptoms protect the child from the stress of repeated evalua- by their very nature are leading questions, endorse- tions and testifying. Recordings may be required by ment of new symptoms at this stage should merit case law when hypnosis is used.69 In addition to al- careful consideration and due explanation. lowing data to be preserved precisely, recording the interview allows it to be scrutinized for leading ques- 5.4.3. Recording tions and examined for integrity and protects the It is generally considered important to make a evaluator against claims of inappropriate behavior. thorough record of interviews. This is most often Certain matters must be addressed well in advance accomplished by taking careful, detailed notes dur- of proceeding with video-recording of an interview. ing the interview, but may include audio- and video- Some institutions do not allow video-recording, in recording. Interview notes and recordings are the which case an alternative approach may be chosen or, property of the evaluator but are usually protected as if possible, the interview should be conducted at an- the referring attorney’s work product. If requested by other location. Recording may produce logistical the referring attorney or the court, copies of notes problems, such as finding a suitable interview loca- and recordings should be provided. If the expert tes- tion and transporting valuable equipment, incurring tifies, the cross-examiner may also request these notes considerable expense and inconvenience. Recording and recordings. As well, evaluators should be aware should not be done surreptitiously. In addition to

Volume 43, Number 2, 2015 Supplement S13 Practice Guideline: The Forensic Assessment warnings concerning the lack of confidentiality rou- Summary 6.1 Types of Assessments in Civil and Criminal tinely made in forensic assessments, an evaluator who Proceedings is recording an interview should inform the evaluee Civil Criminal in advance that the interview will be recorded and Psychic trauma Competence or fitness to stand trial Medical malpractice Insanity/not criminally responsible that the recording becomes a legal document that Disability, fitness for duty, or due to mental disorder may be introduced in court if the evaluator is used as worker’s compensation Competence to waive Miranda an expert. Child custody rights Civil commitment Aid in sentencing Evaluees may wish to record interviews for their Psychological autopsy Sexually violent predator (United own purposes. They may even attend an interview Competence States) with a recording device. Without knowing the plans Testamentary capacity Dangerous or long-term offender for use of a recording, the evaluator would be pru- Competence to make health (Canada) care decisions dent to discourage or refuse to allow a one-sided Competence to manage recording of an interview by the evaluee. If the eval- financial affairs uee insists on recording the interview, the evaluator Competence to enter into a contract may need to consider audio- or video-recording as Guardianship assessments well. It may also be prudent to contact the lawyers involved before proceeding. The evaluator should retain all materials, includ- Regardless of whether the matter is civil or crimi- ing written records or recordings of interviews, for nal, the general purpose of forensic assessment is to the duration of the trial and appeals, and should con- answer a legal question. Questions can range widely: tact the referring agent about discarding these mate- on the criminal side, from competence to stand trial rials after all proceedings are concluded. Materials to criminal responsibility and sentence mitigation, supplied by the referring agent may be retained, and, on the civil side, from psychic harm, malprac- shredded, or returned by agreement with the agent. tice, or standard of care to evaluation of asylum- As a general rule, interview notes and reports should seekers. Some assessments do not usually include an be retained for the time mandated in each jurisdic- interview, but others generally do. Some require a tion or in the pertinent organizational policy. report, and some do not. Some cases will await a preliminary opinion before an attorney decides that 5.5. Assessments Without an Interview a report is needed. Some assessments are contempo- If an assessment is limited to a record review with raneous, and others require a retrospective review. no interview, this limitation should be discussed in In civil cases, after clarifying the type of litigation the report and testimony, which should indicate why with the referring agent, the expert should inquire a personal interview was not performed. The AAPL whether there are statutory definitions, case law, or Ethics Guidelines state: both that provide relevant definitions or guidance. For certain assessments (such as record reviews for malprac- For example, for disability cases, the definition of tice cases), a personal examination is not required. In all disability varies according to the responsible agency other forensic evaluations, if, after appropriate effort, it is (e.g., Veteran’s Administration, Social Security Ad- not feasible to conduct a personal examination, an opinion may nonetheless be rendered on the basis of other informa- ministration, private insurance, or workers’ compen- tion. Under these circumstances, it is the responsibility of sation). It is critical that the forensic evaluator know psychiatrists to make earnest efforts to ensure that their which definitions of disability and work impairment statements, opinions, and reports or testimony based on those opinions, clearly state that there was no personal ex- are being applied to the referred case. amination and note any resulting limitations to their opin- Two aspects of civil forensic psychiatric assess- ions [Ref. 39, Section IV]. Experts are advised to consult ments may not be encountered in criminal assess- the Ethics Guideline should this situation arise. ments. First, if retained by the respondent, the eval- uator may be asked to prepare a declaration outlining 6. Assessment Content the nature and scope of the proposed forensic assess- ment of the plaintiff. Common components of such 6.1. Introduction declarations include the length of the assessment, an- Forensic psychiatric assessments may be requested ticipated areas of inquiry, the specific psychological in a wide variety of civil and criminal cases. testing or assessment instruments that will be used,

S14 The Journal of the American Academy of Psychiatry and the Law Practice Guideline: The Forensic Assessment and whether the examination will be audio or video treatment. This necessitates detailed inquiry about recorded. Second, civil psychiatric assessments con- the various treatment modalities used, the response ducted in the U.S. federal court system must follow to treatment, the adequacy of medication trials (dose Rule 26 of the Federal Rules of Civil Procedure.70 and duration), the evaluee’s adherence to the medi- Rule 26(2)(B) outlines specific requirements in fed- cation schedule, the side effects of medication, and eral court for expert witnesses. the reasons for any discontinuation of treatment. A In criminal cases, the law and statutes may vary full history may also suggest the presence of a person- according to the jurisdiction, and the expert must ality disorder or traits or suggest somatization. become familiar with the requisite law in a particular Details of both a formal history of mental health jurisdiction. Forensic psychiatrists should also be treatment and symptoms that may never have been aware that when they are retained as independent brought to the attention of a mental health profes- experts in criminal matters, either by defense or pros- sional should be elicited. Some symptoms may have ecution, a report may not be requested initially, giv- been treated in the context of nonspecialist medical ing the evaluator time to assess the case and formulate care (e.g., symptoms of depression or anxiety), and an opinion without a concrete work product that this possibility should not be overlooked. could later be used in court. Some jurisdictions pro- A criminal or civil case leading to a forensic psy- tect the content of these assessments from disclosure, chiatric examination may involve an evaluee with no but others do not. psychiatric history. It is not uncommon for first- episode illnesses to be seen in forensic contexts.71 In 6.2. Information Gathering these cases, collateral sources of information, such as 6.2.1. Psychiatric History observation by family, friends, or other laypersons, The psychiatric history is an important element in may be the only information outside of the defen- all forensic assessments. First, it can help to establish dant’s own account. Psychiatric opinions may be any pre-existing context for a mental illness, clarify- viewed with skepticism in court in the absence of ing the diagnosis and substantiating reported symp- psychiatric records corroborating the presence of a toms.36 For example, the evaluee may reveal an epi- mental illness. This eventuality does not preclude the sode or illness that was treated, which was not introduction of such data, but it does make it chal- previously known, leading to the discovery of further lenging at times, and the evaluator will therefore have relevant sources of information. Second, it can pro- to explain the derivation of conclusions and the in- vide information that can be examined in light of the herent limitations of the data. psycholegal matter at hand. For example, if a defen- dant reports that his criminal conduct was the result 6.2.2. Personal History of his recently hearing voices but he has no history of The personal history obtained in the course of a mental illness, it would be important to assess new- forensic assessment is similar to that obtained in clin- onset symptoms. ical settings, although some aspects may warrant ex- The psychiatric history should include reports tra attention. If the evaluee is intellectually or devel- concerning onset, duration, and severity of symp- opmentally disabled or has a physical disability or toms, as well as those requiring hospitalization. neurological disorder, prenatal, perinatal, and neo- When there is a pre-existing illness, the evaluator can natal illnesses and events may be relevant. Informa- assess the impact of a specific event in the longitudi- tion on the achievement of developmental mile- nal course of the illness, which may have bearing on stones is important when the evaluee is a child or causation. Inquiry about response to treatment and adolescent. The preceding information is best ob- remission or improvement, if any, can help in esti- tained from, or corroborated by, collateral sources: mating the persistence of impairment.54 for instance, parents, other caregivers, school records, The referring agent may ask whether the evaluee’s or contemporaneous reports. mental state has stabilized or whether further impair- The history should provide a longitudinal review ment is likely. To respond to this inquiry, the course of personal, academic, social, and occupational func- of the illness and the response to treatment must be tioning.54 An individual’s account of early develop- thoroughly reviewed. Disability insurance carriers mental delays, even in the absence of corroborating often ask for an opinion concerning the adequacy of collateral information, combined with evidence of

Volume 43, Number 2, 2015 Supplement S15 Practice Guideline: The Forensic Assessment functional impairments, may provide information information may also be helpful in both civil and relevant to case formulation. There should be an in- criminal assessments. quiry about the family of origin, including parents The forensic evaluator should ask about the char- and siblings. The results should establish who raised acter of the evaluee’s personal relationships and the evaluee; whether the parents were separated or should obtain thorough marital and religious histo- divorced; whether the family moved frequently; his- ries. In many cases, a more detailed sexual history is tory of domestic violence that the evaluee witnessed; important (e.g., cases involving sexual offenses and history of emotional, physical, or sexual abuse or ne- certain civil claims). Inquiry should also be made glect; and social service involvement and the reasons about the evaluee’s financial status, current living ar- for it. Evaluees should be asked how they perceived rangement, children, and custody and access arrange- their childhood and their relationships to parental ments for the children. Responses to questions about figures, authority figures, and peers. divorce, marriage, and the death of parents or other Educational history adds to a longitudinal focus significant figures, can demonstrate the evaluee’s capac- 36 on functioning, which is particularly relevant to as- ity to establish and maintain relationships. sessments of occupational impairment. The evalua- 6.2.3. Previous Trauma tor should determine whether the evaluee was a good or poor student; moved frequently, interrupting his As with psychiatric assessments, forensic assess- education; had a learning disability or needed special ments include an exploration of previous trauma and accommodations; had early behavioral problems or coping mechanisms. In forensic assessments, it is par- symptoms of conduct disorder; had a history of tru- ticularly important to identify all occurrences and ascertain whether and to what degree they have con- ancy, suspension, or expulsion; related well to peers tributed to the evaluee’s presentation and prognosis. and teachers; was involved in school life; had special Traumatic events may be of increased significance educational placements or individual educational in particular types of forensic cases. For example, a plans; graduated on time; and attended postsecond- mother who had been involved in a traumatic car ary institutions. Finally, the evaluee’s academic per- accident as a child might be overprotective in her formance and highest level of education should be relationships with her children, and this information determined. would be significant (although not dispositive) in a An inquiry about the criteria for conduct disorder custody assessment. Similarly, an evaluee who had in childhood should be conducted. Interviews of the been disabled by a work-related accident might have evaluee, a review of school and social agency records, PTSD as a result of a second accident, and the inter- and, if possible, interviews with caregivers are some- relationships between the two events might be of times helpful. overriding forensic importance. Traumatic experi- In disability-related cases, the interview data ences may affect the way in which an evaluee inter- should be sufficient to allow for an assessment of 72 prets others’ behavior; a survivor of physical or sexual occupational performance. The assessment should assault may interpret another’s behavior as hostile or determine whether the evaluee is a valued worker aggressive. For example, a female evaluee in a sexual who has a stable work history, as evidenced by pro- harassment case who was stalked by an ex-boyfriend motions to positions of increased authority, consis- may be especially offended or unnerved when a male tently high job performance ratings, steady pay coworker absentmindedly stares in her direction, al- increases and bonuses, and commendations, or, al- though the coworker’s behavior was not intended to ternatively, whether the evaluee has a poor work his- be discriminatory or threatening. tory, as evidenced by dismissal from numerous jobs, An individual with a history of victimization may difficulty maintaining a job for a significant amount be vulnerable to exploitation (such as sexual miscon- of time, poor job performance ratings, and numerous duct by a professional). It should be kept in mind conflictual relationships with supervisors, coworkers, that such a history (and the fact that an evaluee was and members of the public. The evaluee should pro- vulnerable) does not necessarily mean that that the vide an explanation for probationary periods, disci- defendant is blameless or that the claimant does not pline, sanctions, and complaints by supervisors, co- have a legitimate case. It may, however, be relevant to workers, and customers and clients.45,73 This the formulation.74

S16 The Journal of the American Academy of Psychiatry and the Law Practice Guideline: The Forensic Assessment

In evaluating cases of recovered memory and early may be relevant to the forensic assessment include trauma, such as sexual abuse in childhood by a family intellectual or developmental disability, narcolepsy, member, the veracity and authenticity of the memo- and sleep apnea. Some symptoms, such as com- ries are often in question.75 In taking a trauma his- plaints of depression and lack of energy, may be tory, the forensic psychiatrist should consider the rel- due to a remediable medical problem. Sleep apnea, evance of particular types of traumatic events in light for example, may cause daytime somnolence that of the claims being raised. Examples of trauma that prompts an employer to request a fitness-for-duty may be relevant to a case include physical or sexual assessment of an employee on the grounds of sus- abuse or neglect; natural disaster, motor vehicle acci- pected substance abuse. dent, fire, or other dangerous event; and military The psychiatrist should try to determine the inter- combat or violent events. In criminal cases, a positive action between medical conditions and other physi- history of abuse and neglect, verified with collateral cal factors and their relationship to the evaluee’s cur- sources, may be important in formulating cases, es- rent functioning. For example, individuals with pecially those involving sexually anomalous or vio- substance use disorders have a higher risk of head lent behavior. This history may also be helpful when injury, but withdrawal syndromes or the substance victimization (e.g., battered-woman syndrome) is use itself can cause or exacerbate the psychiatric pre- relevant to cases that involve mitigation of sentenc- sentation. Furthermore, some evaluees may overstate ing or defense of criminal conduct. In these types of or exaggerate their level of functioning before the cases, traumatic events may have implications for the incident in question, particularly in cases in which a causes of behavior, treatment planning, risk manage- head injury is the alleged cause of disability.76,77 As ment, and risk assessment. with the psychiatric history, the forensic evaluator 6.2.4. Medical History should determine what treatment the evaluee re- The evaluator should record all serious illnesses, ceived (or is currently receiving) for relevant medical operations, and accidents as well as details of current conditions, with a view to assessing whether the con- medication and related adverse effects. The medica- dition or the treatment may have contributed to re- tion history may include a review of nonpharmaco- lated psychiatric disorders. logical somatic treatments (e.g., electroconvulsive Psychiatric symptoms or disorders may have a therapy, transcranial magnetic stimulation) and close relationship to disease processes such as neuro- over-the-counter, natural, and herbal preparations. logic disorders, including traumatic brain injury and The evaluator should note allergies and adverse drug its sequelae; endocrine diseases, such as diabetes or reactions, if relevant. thyroid dysfunction; and a host of other diseases In civil litigation, general medical causes may pro- more peripherally related, such as rheumatoid arthri- duce or exacerbate relevant symptoms. A recent de- tis, cancer, coronary artery disease, anemia, chronic terioration in the evaluee’s condition could be related obstructive pulmonary disease, congestive heart fail- to a history of traumatic brain injury, concussion, or ure, and chronic pain. Symptoms associated with other injury. The forensic psychiatrist should be alert these conditions may also contribute to the develop- to the presence of degenerative brain diseases such as ment or exacerbation of substance use disorders.53 multiple sclerosis or dementia, which can easily The forensic evaluator should also inquire about cur- mimic psychiatric presentations. Episodic confusion rent medications and adverse effects that may con- and forgetfulness could be associated with postictal found the presentation. The presence of comorbid states following a seizure. Other medical factors that medical or physical conditions may contribute to sig- nificant impairment or disability.78 They may also

Summary 6.2.4 Previous Medical and Surgical History contribute to criminal behavior and help the evalua- tor to understand it. In particular, neurological dis- ● Neurological illnesses ● Head injuries and sequelae orders, such as seizures, the sequelae of traumatic ● Endocrine diseases brain injury, and certain endocrine disorders, should ● Chronic diseases or chronic pain always be considered when formulating cases involv- ● Hospitalizations ing impulsivity, violence, or sexually anomalous ● Relevant medications behavior.

Volume 43, Number 2, 2015 Supplement S17 Practice Guideline: The Forensic Assessment

When more information is needed about possible to determine whether the evaluee has any symptoms medical causes or factors, additional laboratory test- of a thought disorder and whether these symptoms ing, imaging studies, collateral verification, or refer- might have affected his behavior or his perception of ral for neurological or psychological testing may be what happened during the incident at issue. The indicated. Typically, the psychiatrist completing the presence of severe mental illness in a parent may not forensic assessment need not personally order the only suggest a genetic predisposition, but also raises tests or make the referrals but may recommend that the question of an absent parent or a chaotic house- the referring agent or court arrange these additional hold. Discussions with the evaluee about the current assessments (see Section 8, Adjunctive Tests). family structure and relationships with significant others can provide information relevant to treatment 6.2.5. Family History recommendations and prognostic observations. Mental disorders among first-degree relatives may An evaluee’s family history can be significant in reflect genetic or environmental influences that have several additional ways, such as helping to explain also affected the evaluee. The personality of the par- how an individual developed beliefs about the effects ents, their financial situation, and the status of the or symptoms of a particular illness. For example, if family in the local community are all likely to have someone within the evaluee’s family has a seizure affected the environment in which the evaluee grew disorder and the evaluee has witnessed the seizures, up. Events occurring within the family may be con- the evaluee may consciously or unconsciously repro- tinuing sources of stress. An evaluee’s experience of duce those symptoms. Such facts can be pertinent in illness in the family may affect the way in which he cases of suspected malingering or somatization. presents symptoms. In medical malpractice cases, the forensic evalua- The evaluator may gather information about the tor should determine whether the treating physician parents, including current age or age at death (and if took a full family history and whether relevant family deceased, the cause), health when alive, occupation, history may have been ignored or overlooked: for personality, and quality of relationship with the eval- example, whether the physician inquired about a uee. For siblings, the evaluator may determine their family history of suicide when conducting a suicide ages, marital status, occupation, personality, psychi- risk assessment.79 atric illness, and quality of relationship with the In general, the forensic psychiatrist should not rely evaluee. solely on the evaluee’s self-reported family history. The evaluator may also inquire about histories of Whenever possible, the evaluator should use collat- mental illness and substance abuse within the family, eral sources of information, which may provide facts including attempted or completed suicide and hos- or clues that aid in the assessment, such as a family pitalization for psychiatric problems. The presence history of suicide or suicide attempts, violent behav- of symptoms that meet criteria for antisocial person- ior, criminal involvement, and legal difficulties. ality disorder in one or both parents could provide significant information. A positive family history can 6.2.6. Substance Use help in formulating an accurate diagnosis. The fam- The assessment of drug and alcohol use should ily history can also contribute to the diagnosis of an include, for each substance used, the date of first use; undetected mental illness that could be resolved average daily use; and symptoms, signs, and severity through treatment, thereby mitigating or eliminat- of the substance use disorder. For presentence assess- ing a current disability. Sometimes the family history ments, the evaluee’s treatment for a substance use reveals potential medical causes of the evaluee’s disorder and related problems is likely to be particu- symptoms. For example, the emergence of psychotic larly important. symptoms following a traumatic event may be caused The psychiatrist may not be able to rely on the by the early stages of Huntington’s disease arising evaluee’s self-report. Evaluees may deny past prob- independently of the accident. lematic substance use, and even forthcoming eval- The family history may yield clues about the eval- uees may not disclose all relevant substance use. uee’s early development and other psychosocial con- Some evaluees may deny problematic use of prescrip- siderations. A history of psychosis (such as schizo- tion medications, believing that, since drugs are pre- phrenia) in the family should prompt the psychiatrist scribed, they are not substances in the sense described

S18 The Journal of the American Academy of Psychiatry and the Law Practice Guideline: The Forensic Assessment by the term substance use disorder. Similarly, the A careful review of the evaluee’s medical records evaluee may be unaware of the nature of over-the- can be especially helpful. Records from pharmacies counter and prescription drugs. For example, the or physicians’ order forms may identify commonly evaluee may not know that hydrocodone is an opioid abused prescription medications. The records may with addictive potential. Hence, rather than asking also indicate illnesses, injuries, or treatment related evaluees whether they have taken specific medica- to substance use. A review of the evaluee’s medical tions or specific classes of drugs, the evaluators can record could reveal signs of drug or alcohol use dis- inquire whether evaluees have taken pain pills or any- order, such as increased mean corpuscular volume or thing to help them sleep and investigate further if the elevated liver function enzyme levels.80 When re- response is positive. Some nutraceuticals (such as viewing these records, the forensic evaluator might ginkgo biloba or St. John’s wort) may be significant, also look for signs of pre-existing disability that may and the evaluator may learn of their use by asking stem from substance use, such as head trauma. In a questions such as, “Are you taking any pills or sup- personal-injury suit, the plaintiff could be claiming plements for your health?” side effects of traumatic brain injury characterized by In civil and criminal cases involving incidents in memory loss, but his existing memory loss may be a the evaluee’s past, the psychiatrist should also con- consequence of chronic alcohol use. Similarly, mem- sider the possibility that the evaluee was intoxicated ory difficulties could also derive from intoxication- at the time of the incident in question and that sub- induced blackouts. An evaluee’s substance use may stance use may have been involved during the claim- also increase the likelihood of developing a particular ant’s legal involvement or conflicts. In civil cases, psychiatric disorder or symptom or even neuropsy- current withdrawal or substance use may also have chiatric impairment. For example, alcohol may con- implications for the evaluee’s involvement and par- tribute to memory and word-finding deficiencies, ticipation in the litigation in question. Gendel80 pro- whereas chronic marijuana use has been shown to vided an excellent introduction to the importance of increase the risk of early-onset psychosis.84 substance use disorders in forensic psychiatry and Collateral sources such as treatment records litigation. should be cited when possible. Courts are likely to Systematic inquiries are especially helpful in ob- take a skeptical view of an evaluee’s description of a taining a full substance use history. As well, self- positive response to treatment, especially if the of- report measures are available to aid in investigating or fense or claim seems to be related to substance use. screening for substance use disorders.81–83 It is especially important to consider whether any 6.2.7. Information Gathering in Criminal Cases of the evaluee’s reported symptoms may be related to In obtaining various types of histories, there are substance use. For example, in a claim for intentional special considerations in criminal cases. These con- infliction of emotional distress, an evaluee, the plain- stitute mainly differences in emphasis, depending on tiff, may report that the defendant’s belligerent con- the forensic evaluee’s clinical presentation and the duct has caused significant anxiety, but the anxiety offense. symptoms may be primarily attributable to a sub- The assessment should note neurological condi- stance withdrawal syndrome or the use of a particular tions, head injuries, seizures, and any illnesses that drug. An individual who drinks during the evening led to substantial periods of separation from the fam- may experience tremors and sweating during the day ily. From the personal history, the nature, source, and may interpret these symptoms as anxiety. On the and character of family arguments probably carry other hand, anxiety resulting from the defendant’s more significance than their simple occurrence. Early threatening behavior may provoke the evaluee to use risk factors for conduct, such as inconsistent parent- sedatives or other substances in an attempt to self- ing, neglectful or severe discipline, absent parents, medicate. In either case, evaluees may be guarded and parental substance use should be subject to in- and may not be forthcoming about the substance quiry.85 Parental unemployment and marital prob- use, fearing that such information may harm their cred- lems, including family violence, are particularly im- ibility as plaintiffs or damage their case. The evaluator portant.86 School performance can offer information should consider these possibilities in conducting a com- concerning attitude toward authority, attentional plete and accurate psychiatric assessment. deficits, and intelligence level. Occupational history

Volume 43, Number 2, 2015 Supplement S19 Practice Guideline: The Forensic Assessment can provide insight into the evaluee’s personality, In the latter case, the psychiatric history should be including attitude toward authority. Repeated termi- related to temporal elements in the criminal assess- nations of employment can reflect aggressiveness, an- ment. For example, the interview might ascertain tiauthority attitudes, paranoia, or awkwardness, al- that an evaluee was gradually developing manic though the evaluator should not assume that this is symptoms in the weeks before an alleged offense, the case. Alternatively, a decline in the status of jobs leading to the hypothesis that, at the time of the held can be a sign of developing mental illness or of offense, the defendant was manic with psychotic fea- substance use disorder. tures. When the evaluee is interviewed several weeks Particular judgment is required in eliciting a sex- later, after the initiation of treatment, the manic ual history. In certain cases, detailed information is symptoms may or may not be evident. necessary (see also Section 11.4, Risk Assessment for In this regard, the timing of the interview may in Sexual Offenses), but in others it may be inappropri- some cases make a critical difference. Hence, in cer- ate to follow this line of questioning. As with occu- tain cases it is important to attempt to interview the pational history, a client’s relationship history may evaluee as soon as possible after the crime, to observe provide clues relating to traits such as jealousy, sus- the evaluee’s mental state as close as possible to the piciousness, or violent propensities, but cannot be alleged commission of the crime. Obtaining the in- taken as indicative without further information. terview close to the arrest can be a challenge, because In criminal assessments, the history of offenses by access to evaluees depends on when the referral is the evaluee may be included. Many evaluees have made and logistical factors. extensive arrest and conviction records. In describing Depending on the type of criminal forensic assess- these, a balance must be struck between complete- ment, there may be a need for more or less informa- ness and excessive detail. Generally, the offense his- tion related to the circumstances leading to the crim- tory should include the types and number of of- inal charge(s). Thus, more information regarding the fenses. Individual charges may be described, or, if index offense is needed to determine criminal re- there are several, they may be grouped (e.g., “The sponsibility or to aid in sentencing, whereas less is defendant has been convicted four times of robbery, needed to determine competence to stand trial or to and six times of assault and battery, dating back to proceed pro se. When more information is needed, it 2002. Of the assault convictions, one last year in- is as important to review the story from the evaluee’s volved the use of a weapon.”) When clustering the perspective as it is to have access to the case against offenses together, the evaluator should provide him. For that matter, in any assessment related to enough detail to describe patterns that are discernible mental status at a particular time point (e.g., compe- in the nature and timing of the offenses. In addition tence to waive Miranda rights), the evaluator should to the types of offenses, it is often helpful to include understand the history and context of the time in their outcomes, length of incarceration (“incarcer- question and relate it to the thoughts, perceptions, ated 2 years after being found guilty in a jury trial”), feelings, and psychological functioning of the eval- and defaults or probation violations. This approach uee at that time. may be useful in revealing and setting out the length These point-in-time analyses are best conducted of time in the community before recidivism, or, al- by asking the evaluee to reflect on the months, weeks, ternatively, in delineating periods of stability. days, hours, and even minutes before, during, and In addition to the usual psychiatric history and after the offense. The need for such detail is one of interview, for criminal forensic assessments, the in- the reasons that forensic evaluations are often more terview of the evaluee must include the elements that time-consuming than regular psychiatric consulta- focus on the criminal psycholegal question at hand. tions. Different styles of approach in the interview As a result, the interview is structured around the can be used in gathering the required information. purpose of the assessment and the forensic question. The evaluator can first ask for a full, uninterrupted Criminal assessments may require interviews that ex- account of the events in question, followed by a sec- plore present-state examinations (e.g., competence ondary review with questions probing for detail, con- to stand trial) or that elucidate past mental states sistencies, contradictions, and relevant facts. Another (e.g., criminal responsibility and competence to approach is to allow a first broad-brush account and waive Miranda rights).85 then gather a full account with questions interjected,

S20 The Journal of the American Academy of Psychiatry and the Law Practice Guideline: The Forensic Assessment followed by a third, more detailed, full account. uee is competent to assist or instruct counsel and can Sometimes it is necessary to interrupt an evaluee who participate in making decisions during the instant may want to move on to other subjects, to ensure that legal case. This area is comprehensively reviewed in he accurately describes his memories of to the time the Practice Guideline for the Forensic Psychiatric point of interest. An evaluee may resist this process, Evaluation of Competence to Stand Trial.36 tending instead to gloss over the details. It is the role of the evaluator to keep the evaluee on task, even if it 6.2.8. Aid in Sentencing Evaluations is sometimes difficult for the evaluee to stay focused. Mental health professionals can lend guidance in With any approach, it is important to avoid leading clinical matters regarding sentencing in a case. These questions and to ensure that the evaluee can convey evaluations are referred to differently in various ju- his story without suggestion. Suggestibility may be risdictions and may be called aid in sentencing, pre- particularly relevant when interviewing children and sentencing, or probation evaluations. There are sev- persons with intellectual disabilities (see Section eral principles of sentencing that may be articulated 10.2, Child and Adolescent Forensic Assessments, and emphasized differently in different jurisdictions, and Section 10.3, Assessments of Persons with Intel- and the expert should be mindful that it is up to the lectual Disability). court to weigh these. In addressing one of the prin- For assessments in which a full, detailed self- ciples of sentencing (i.e., rehabilitation), mental description of the crime would not always be needed health experts typically offer opinions on the treat- (e.g., competence to stand trial or to waive Miranda ment needs and treatability of the offender. The ex- rights), the evaluator may nonetheless have reason to pert may address whether the custodial environment ask about the evaluee’s account of the alleged crime could perpetuate the disordered state and therefore in general terms. For example, in an evaluation of militate against the goals of sentencing. Such evalu- competence to stand trial, the evaluator may want to ations may include whether a particular treatment is assess the defendant’s ability to provide a rational available in custody, and whether this treatment account of the charges and to appreciate the nature of might reduce the likelihood of recidivism. However, the allegations, to elucidate whether the evaluee has in some jurisdictions, the matter of treatment while the capacity to confirm or refute the allegations when in custody is not addressed. The expert may offer an instructing the defense attorney and when appearing opinion on whether successful treatment furthers the in court. goal of making the community safer. Another matter When performing assessments regarding compe- is culpability at the time of the crime, based on an tence to waive Miranda rights, the evaluator must analysis of mental health or substance use factors that delineate psychiatric symptoms and state of mind at may have been contributory (even if they were insuf- the time that the rights were presented or identify ficient for an insanity defense), thereby mitigating chronic deficits that affect the evaluee’s capacity to culpability. The expert can also assist the court by appreciate or understand the warning. Making this assessing the risk of reoffending, violence, or sui- determination requires a history of psychiatric symp- cide.6 Depending on the jurisdiction (e.g., federal toms before and right up to the time that the evaluee versus state), there may be a need to contact a referral waived his rights. Observations made immediately source, such as probation, to clarify the questions the afterward by professionals or lay witnesses should be court may want to have answered. obtained and taken into account. It is often helpful to Special considerations in sentencing include question the evaluee regarding any statements or young-offender statutes that require consideration of contemporaneous observations made, to understand developmental disabilities; sexual offenses, which fully and recreate retrospectively the evaluee’s mental may involve a period of civil commitment after the state at the time, in relation to competence.87 Com- sentence; and special assessments, which determine petence of youths to waive Miranda rights is a com- the appropriateness of a drug court, mental health mon concern, and there are adjunctive instruments court, or other special program for an offender with a available for juvenile populations that an evaluator mental disorder. The evaluator in the latter case must may find helpful in focusing the inquiry. understand the admission criteria, referral process,88 The assessment of competence to stand trial re- and focused goals of participation in these special quires specific questions regarding whether the eval- programs, to determine whether a defendant is a

Volume 43, Number 2, 2015 Supplement S21 Practice Guideline: The Forensic Assessment good candidate for any of them. In some jurisdic- The criteria for competency to be executed have tions (such as Canada), mental health experts com- had to be defined since the Supreme Court held in monly address deterrence in presentencing evalua- Ford v. Wainwright that execution of the “insane”, as tions. The evaluation may guide the court in people with severe mental illness are referred to in the determining whether an individual who has a mental decision, is constitutionally impermissible.93 The disorder, or the diagnostic group to which an evaluee Court was unable to agree on a standard for incom- belongs (for example, people with schizophrenia), petence, but Justice Powell, in a concurring opinion, would be deterred by a sentence.89 A thorough fo- offered the following, “I would hold that the Eighth rensic psychiatric evaluation should not include an Amendment forbids the execution only of those who actual sentencing recommendation; that responsibil- are unaware of the punishment they are about to ity falls to the judge.90 Rather, the evaluation must suffer and why they are to suffer it” (Ref. 93, p 422). take into account the nature of the offender’s mental This standard became the de facto one in most states disorder and the nuances of the sentencing options in until 2007, when the Supreme Court, in Panetti v. helping to formulate opinions. Quarterman, stated that, “the Ford opinions nowhere indicate that delusions are irrelevant to comprehen- 6.2.9. Death Penalty sion or awareness if they so impair the prisoner’s The death penalty presents an ethics-related di- concept of reality that he cannot reach a rational lemma for forensic psychiatrists, because involve- understanding of the reason for the execution” (Ref. ment in a case that may lead to a death sentence may 94, p 958). Thus, the Court held that a “prisoner’s conflict with strongly held beliefs about its morality. awareness of the state’s rationale for an execution is Some psychiatrists have resolved this dilemma by re- not the same as a rational understanding of it” (Ref. fusing to participate in any way in a potential death- 94, p 959). However, the Court did not go on to penalty case. Others have drawn the line at a point in define a specific competence standard. How much of the legal process where they feel involvement is a difference Panetti has made has depended entirely equivalent to participation in the infliction of capital on how broadly the courts construe rationality. It is difficult to determine whether a prisoner rationally punishment. The Council on Ethical and Judicial understands his punishment if it is unclear what ren- Affairs of the American Medical Association, in con- ders a perception rational or irrational. A narrow sultation with the American Psychiatric Association conception of rationality would result in the execu- (APA), has developed an ethics policy providing tion of individuals who do not truly understand their guidance for psychiatrists and physicians who deal sentences, whereas an expansive view would result in with death row inmates in either a forensic or a treat- 91 overprotection, shielding individuals who are capa- ment role. These guidelines, which have also been ble of understanding the retributive dimensions of adopted by the APA, should be consulted when the their execution. Although the Supreme Court left psychiatrist is considering treatment to restore com- open the possibility that psychiatrists could be the petency for an inmate to be executed or is unsure of final decision-makers in competence determina- what constitutes unethical participation in an execu- tions, the AMA Ethics Guidelines prohibit that tion. One survey showed that most physicians were 91 92 role. unaware of these guidelines. Another facet of death penalty cases involves a In different states and jurisdictions, the availability jury’s deciding whether the sentence is warranted af- of competent legal representation varies greatly. ter it has found the defendant guilty of a capital fel- Some states have special capital defense units as part ony. This decision is made in a separate sentencing of the public defender’s office; other states assign hearing involving a review of aggravating and miti- private attorneys who may never have handled a cap- gating factors. Psychiatrists are often asked to evalu- ital case. Although some funding should be available ate the defendant to explore what might be viewed as for evaluations by experts, the amount of funding mitigation. These broad-ranging evaluations review also varies considerably in different states. Once a an individual’s history in great detail so that factors psychiatrist accepts a case for evaluation, there may such as child abuse or neglect, even if unrelated to the be a contractual obligation to complete that crime, can be considered by the jury. These evalua- evaluation. tions should therefore be thorough and often include

S22 The Journal of the American Academy of Psychiatry and the Law Practice Guideline: The Forensic Assessment psychological testing, brain scans, and collateral in- any. The effects of the incident can be reviewed in the terviews of individuals who knew the defendant. In immediate period (from the day of to a month after some cases, psychiatrists have testified about the fu- the incident); the medium term (more than one ture dangerousness of a defendant, whereas in others, month to one year after the incident); and the long they have been asked about the methodology of such term (more than one year after the incident). When risk assessments for the defense. evaluating the claimed psychological effects of the During the mandatory appeal of these cases, it is alleged incident, the evaluator should carefully re- also common for psychiatrists be asked to review the view collateral records (such as psychiatric, medical, defendant’s history to ensure that no psychiatric fac- and rehabilitation records or newspaper accounts), to tor has been overlooked by the original trial attor- assess the symptoms, their severity, and their time neys, who may not have asked for a psychiatric eval- course. Questioning the evaluee about incidents and uation. This assessment may include a retrospective inconsistencies in the collateral contribution may aid chart review, with or without an interview. in coming to conclusions. Areas to be covered in- 6.2.10. Information-Gathering in Civil Assessments clude psychological and pharmacological treatments, adherence to treatment recommendations, reported Personal-injury cases involving psychic trauma treatment failures, adverse consequences of treat- generate a frequently encountered type of civil assess- ment interventions, factors that precipitate or aggra- ment. In such cases, important areas of inquiry re- vate symptoms, and measures that have been success- garding the evaluee’s claim include a detailed de- ful in relieving symptoms. Disability assessments scription of the alleged precipitating factors and their generally require an evaluation of how the claimed time course; the duration and amount of exposure to psychological symptoms (such as a depressed mood any alleged trauma; and the evaluee’s thoughts, feel- or impaired concentration) affect the person’s ability ings, and behavior before, during, and immediately to work. after the traumatic event. Reviewing the evaluee’s The evaluee’s social functioning is important specific claims outlined in the complaint and other when assessing claims of emotional damage. Areas to legal documents may assist in addressing the con- explore include the status of current personal rela- cerns that are the focus of the litigation. In addition, tionships, participation in exercise and hobbies, daily a spouse or significant other, family members, or activities on each day of the week, recent or planned witnesses to the event can provide additional infor- vacations, and scheduled activities (such as educa- mation on the evaluee’s alleged exposure to trauma. tional classes, attendance at religious institutions, This information can be obtained through direct in- and social groups). Regular activities, including those terviews, depositions, or other available records. Any of daily living (such as cleaning, shopping, cooking, discrepancies in the evaluee’s account of circum- paying bills, driving or taking transportation, and stances may be clarified through collateral records or maintaining a residence), are likewise relevant. The statements. evaluator should compare the evaluee’s current level of social functioning to the level before and immedi- Summary 6.2.10A Content of Assessment: Civil (Psychic Injury) ately after the alleged incident. Finally, other poten- ● Duration and amount of exposure to trauma tial social stressors that may independently cause ● Evaluee’s perception of the event emotional distress should be thoroughly explored. ● Impact of the trauma Such social stressors include loss of a family member ● Immediate or loved one, separation or difficulties in a relation- ● Medium-term ship, family problems, criminal arrest, or exposure to ● Long-term ● Treatment provided an unrelated traumatic incident. ● Factors that aggravate or relieve symptoms

Summary 6.2.10B Evaluation of Social Functioning ● After gathering the evaluee’s account, the psychi- Social activities ● Activities of daily living atrist should take a detailed history regarding the ● Relationships emotional impact, if any, of the alleged incident or ● Other social stressors trauma and the reasons for the evaluee’s disability, if

Volume 43, Number 2, 2015 Supplement S23 Practice Guideline: The Forensic Assessment

Current occupational functioning should be re- job should be gathered to relate an impairment to a viewed when assessing a person’s claimed emotional specific job responsibility. A formal job description damage or disability. Specific questions to review obtained from the employer can be used to define with the evaluee include occupational activities and essential tasks. The evaluee should be asked to pro- sources of income, attempts to return to work, and vide descriptions of situations in which occupational perceived emotional or situational barriers to resum- functioning was impaired. Lists of work functions ing work. The evaluator should obtain a detailed em- can be helpful in organizing inquiries about possibly ployment history to determine whether an alleged related impairments.54 It is important to correlate incident has resulted in a subsequently claimed oc- the essential job requirements with the evaluee’s cupational impairment. Important areas include jobs claimed or observed impairments. and assigned duties, length of employment for each Military history and juvenile and adult legal histo- job, ability to work with others and accept or provide ries are especially helpful in assessing risk of violence, supervision, reasons for leaving employment, disci- which is often a facet of fitness-for-duty assessments. plinary actions related to employment, prior civil Military history should include the type of discharge lawsuits regarding employment, and previous claims and a description of disciplinary actions, if any. The for occupational disability (such as workers’ compen- evaluee’s litigation history should also be explored in sation, social security disability insurance, or private the assessment. disability insurance). 6.2.11. Assessment of Specific Civil Competence Forensic psychiatrists are often retained to assess Summary 6.2.10C Evaluation of Occupational Functioning the psychiatric competence or capacity of an evaluee ● Detailed occupational history to engage in a specific act. In general competence, ● Current work and income there are essential elements that should be consid- ● Previous work and income ● Problems encountered in the workplace ered, including the evaluee’s awareness of the situa- ● Attempts to return to work tion, factual understanding of the problems in- ● Perceived barriers to return to work volved, appreciation of the likely consequences, ability to manipulate information rationally, ability to function in his own environment, and ability to In another area of civil assessment, disability and perform the tasks demanded of him. Specific compe- fitness-for-duty evaluations , an expanded inquiry tence entails four elements, some of which are the into the evaluee’s educational and employment his- same as general competence: communication of a tories is necessary.54,73,95 Evaluees should be asked to choice sustained long enough to implement it, fac- describe problematic situations encountered in the tual understanding of the problems involved, appre- workplace or in attempts to obtain employment. An ciation of the situation and its consequences, and evaluee’s own account of work-related functioning rational manipulation of information.97 can be helpful when assessing claims of previous high Some of these specific competence assessments may functioning or when interpersonal problems are involve consent to treatment,98 guardianship evalua- involved.54 tions,99 testamentary capacity,100 financial compe- Evaluees may be referred for fitness-for-duty as- tence, and competence to enter into a contract.97 sessments inappropriately. The evaluee should have The forensic psychiatric examination of compe- the opportunity to explain any work-related conflict tence follows the general principles of other assess- that may provide an alternative explanation for the ments and includes a thorough psychiatric assess- behavior that triggered the assessment.96 The evalu- ment, with an interview and a mental status ator should gather information about previous work- examination, if possible, and an examination of col- ers’ compensation or public or private disability lateral information. An exploration of how psychiat- claims, including length of time out of work and ric diagnosis and various symptoms may interfere whether any accommodations were necessary upon with any or all of the types of competence is essential. return. Competence to consent to or refuse treatment in- In disability or fitness-for-duty assessments, suffi- volves an assessment of whether the evaluee can give cient information about functioning in the current informed consent.98 This evaluation includes

S24 The Journal of the American Academy of Psychiatry and the Law Practice Guideline: The Forensic Assessment whether the evaluee understands information regard- anxiety, trauma-related symptoms, thought content, ing the risks, benefits, and alternatives to treatment. thought form, delusional beliefs, perceptual distur- Further, it is important to assess whether there is a bances, cognition, and concentration and relevant mental disorder that interferes with the evaluee’s comments, insights, and judgment.36 The mental decision-making capacity. Finally, his consent must status assessment is usually helpful in formulating a be free and voluntary. This process requires that the diagnosis and in assessing the evaluee’s strengths and treatment team disclose sufficient information to the vulnerabilities resulting from psychiatric symptoms evaluee.97 or cognitive impairments. In considering the pres- An assessment of an evaluee’s competence to man- ence of malingering, the evaluator may focus on the age financial affairs requires questioning about his inconsistencies between reporting and behavior (see awareness of his financial situation, as well as broader Section 10.5, Malingering and Dissimulation).36 questioning about areas that may be affected by spe- cific psychiatric symptoms. For example, a delusion that some organization is trying to steal an evaluee’s Summary 6.3 Aspects of a Mental Status Examination money may affect financial decision-making. Having ● Appearance, attitude, and behavior established the presence of delusions, it would still be ● Mood and affect ● Speech and thought form necessary, as in this example, for the psychiatrist to ● Speech and thought content identify a clear link between the delusion or other ● Perception psychopathology and the financial decision-making ● Cognition task. ● Insight and judgment Evaluations for testamentary capacity (compe- tence to compose a will) are generally retrospective, since the evaluee in most cases is a decedent whose Particular care is necessary in addressing several will is being contested postmortem. The evaluator aspects of mental status that are important in a crim- should make note, if writing a report or testifying, of inal forensic assessment. Ideas of harming others are the inability to conduct a personal interview and the sometimes revealed through a series of questions re- resulting limitations of the assessment. The assess- lating to troubling or intrusive thoughts. Direct ment relies on a retrospective assembly of informa- questions may still be needed, especially if a client tion concerning the evaluee’s mental state at the time gives indirect or evasive answers. Delusions can be of writing the will. It is important to attempt to assess difficult to ascertain and are often best elicited by whether the individual had the capacity to be aware using cues from the history or by inquiring about the of the value of the estate. A pertinent question is possible causes of the symptoms. Testing the whether the evaluee was having delusions, which strength of delusional beliefs during an assessment, could directly affect his capacity to compose a realis- particularly when the interview is conducted in a tic will. Another concern is whether the testator was correctional facility, requires tact and careful listen- subjected to undue influence: that is, was directly ing to the defendant, who may become argumenta- and deliberately manipulated or deceived by a party. tive or aggressive. The evaluator may be in a position to comment on Some aspects of psychiatric phenomenology that whether a psychiatric condition or symptom(s) made are of significance in forensic assessments are listed in the testator susceptible to manipulation that could Summary 6.3. In other respects, the assessment legally constitute undue influence. should address the same aspects that are assessed in general psychiatric settings. 6.3. Mental Status Examination The observations of hospital staff or of profession- A thorough mental status examination should be als in a correctional setting often complement the performed in most types of assessments. Information evaluee’s presentation in the course of an interview; from direct inquiry related to aspects of functioning hence, any such useful observations may be included (e.g., basic cognitive assessments) adds to clinical ob- in the report. The evaluator should consider that servations and general interview data. The examina- evaluees detained in a correctional facility may not tion will elicit information about the frequency and have undergone a detailed mental status examina- severity of psychiatric symptoms, including mood, tion, and it is not unusual for a forensic assessment to

Volume 43, Number 2, 2015 Supplement S25 Practice Guideline: The Forensic Assessment reveal genuine symptoms and signs that have not the criteria for diagnoses may shift over time, neces- been identified in that setting. sitating reference to different versions of the DSM (e.g., DSM-IV-TR104 versus DSM-5). If malinger- 7. Diagnosis ing or exaggeration of symptoms is suspected, the It is important to develop a diagnostic formulation formal diagnosis (if any) requires careful consider- ation of alternative explanations for the evaluee’s pre- that explains the evaluee’s symptoms and signs and 105 their relevance to the psycholegal question at issue. If sentation. Furthermore, a plaintiff may have sub- symptoms and signs allow a diagnosis that is in ac- threshold symptoms but still have impairment or, conversely, have a DSM diagnosis but little cordance with the current categories of the Diagnos- 101 tic and Statistical Manual of Mental Disorders impairment. (DSM) or the International Classification of Dis- Regardless of these reservations, as noted else- eases (ICD), it should be so assigned. In North where in this document, competence evaluations are America, the DSM is the most frequently used refer- point-in-time assessments, in which forensic evalua- ence, is familiar to attorneys and courts, and should tors should attempt to make a DSM or ICD diagno- therefore be used wherever possible. A discussion of sis, depending on the type of evaluation and the the current diagnosis may be included in the report, jurisdictional requirements. For example, in evalua- tions of competence to stand trial, most states require depending on jurisdictional practices and the legal 36 standards for an evaluation type. When diagnoses are a diagnostic assessment. Nevertheless, the evalua- offered, the expert should outline the reasoning lead- tor must concentrate on the evaluee’s contempora- ing to the current diagnosis and why it may differ neous level of functioning rather than rely on a spe- from previous diagnoses on file. cific diagnosis that is insufficient to reach a There have been concerns about the misuse of conclusion regarding the legal standard of compe- DSM diagnoses in areas of litigation, as information tence. Once the diagnosis is made, it is important to conveyed by a diagnosis may not meet the require- consider the nexus between the diagnosis and the ments necessary to arrive at a legal decision.101 The psycholegal questions. For example, many disability fifth edition of the DSM (DSM-5), in its “Caution- insurance carriers require a multiaxial DSM diagno- ary Statement for Forensic Use of DSM-5” (Ref. sis, although this may change with the application of 102, p 25), warns experts and others that a specific DSM-5. If there is insufficient information for a de- diagnosis may not be consistent with the legal criteria finitive diagnosis, a differential diagnosis with an ex- planation of the diagnostic uncertainty should be that may be used to draw conclusions relevant to a 101 particular legal standard. The statement continues by provided. advising that additional information be elicited about the evaluee’s functional impairments that may 8. Adjunctive Tests be related to the specific legal standard. Experts are advised to read this disclaimer and take note of it. 8.1. Introduction The relationship between diagnosis and impairment Forensic assessments are strengthened by indepen- is complex, and there can be psychiatric and legal dent data, including results of standardized tests, overemphasis and reliance on diagnosis rather than which can augment clinical forensic evaluations in on the assessment of functioning.101 Providing a some cases. Evaluators should be aware that stan- DSM diagnosis does not substitute for conducting a dardized tests have varying degrees of reliability. careful functional assessment. In personal injury lit- When a psychologist has performed the test and scor- igation, assessment of damages should not be based ing and provides a report, unless the psychiatrist has on diagnosis alone, but rather on pre- and postinci- specialized training, he should not claim expertise in dent functioning and whether a functional impair- the area. Rather, the psychiatrist in this situation ment was causally related to a defendant’s conduct. should have a general understanding of the use of the Special caution is warranted when considering a di- individual test. A psychologist can be called to pro- agnosis of PTSD in the context of personal injury vide testimony, if necessary. By contrast, when test- cases. Unlike most of the alternatives, a diagnosis of ing is performed by a psychiatrist, a greater degree of PTSD assumes a causal event that was most likely the knowledge about the test is required. Furthermore, contributing factor.103 Causality is also an area where some new instruments being used in the field, such as

S26 The Journal of the American Academy of Psychiatry and the Law Practice Guideline: The Forensic Assessment those for risk assessment, do not require psychologi- versus self), the psychological properties being as- cal training, per se, for their administration or inter- sessed (e.g., neuropsychology versus personality), pretation, but their use may nonetheless require spe- and whether the instrument is under copyright (pro- cific training. In criminal contexts, adjunctive testing prietary versus nonproprietary). Testing without a may include forensic assessment instruments (FAIs) specific question is rarely productive. For example, specific to the forensic question at hand (see Sum- conducting intelligence testing on a university pro- mary 8.1). Several measures that assess aspects of fessor may make no sense. If dementia is in the dif- competence to stand trial in either general or specific ferential diagnosis, formal neuropsychological test- (e.g., developmentally disabled) populations have ing combined with focused diagnostic testing to been devised.106,107 In addition, Rogers108 has cre- identify the cause of the suspected dementia may be a ated an instrument for assessment of criminal re- better use of resources. sponsibility. The use of FAIs is not required, and no Obstructions to the validity of the results of a fo- FAI is universally used in any type of forensic assess- rensic psychiatric assessment include deception, ma- ment. Evaluators who choose to use these instru- lingering, simulation, and dissimulation. Psycholog- ments should be familiar with their applicability to ical testing may be useful in identifying the presence each type of assessment. of such misrepresentations (see Section 10.5, Malin- gering and Dissimulation).118 Selected tests are administered by a psychiatrist Summary 8.1 Sample Forensic Assessment Instruments for Competence to Stand Trial and may provide useful information pertinent to an ● Georgia Court Competency Test–Mississippi State Hospital assessment. The use of psychiatric rating scales can version109 help quantify symptoms and measure changes in se- ● The Competence Assessment for Standing Trial for Defendants verity. Many are accompanied by a manual that pro- with Mental Retardation110,111 vides reliability and validity measures for the scale; ● Interdisciplinary Fitness Interview–Revised112 ● MacArthur Competence Assessment Tool–Criminal hence, such scales lend a measure of objectivity to the Adjudication113 assessment. A full discussion of these scales is outside ● Fitness Interview Test (Revised Edition)114 the scope of this Guideline. ● Evaluation of Competency to Stand Trial–Revised (ECST-R)115 ● The METFORS Fitness Questionnaire (MFQ)116 8.3. Actuarial Tests and Structured Professional Judgment The quintessential actuarial tests are those estab- 8.2. Psychological Testing lished by the life insurance industry to assign insur- It is important that psychological testing be con- ance rates to its clients. Actuarial tables are designed ducted by an examiner with the level of training and to distinguish people with long life expectancies from professional qualifications required by the test devel- those with short ones. The tests are highly effective opers and that terms of reporting be established be- because they are based on large samples that repre- fore testing begins. In some cases, the forensic psy- sent the population to which the individual belongs. chiatrist subcontracts psychological testing; in other The accuracy of actuarial tables decreases as the size cases, a psychologist may conduct psychological test- of the sample decreases and as the individual differs ing independently or as part of a hospital team. It is from the standardization sample. important that the evaluee understand for whom the By contrast, most forensic actuarial instruments tester is working and to whom the examiner will are based on smaller samples with unique character- report. As well, the examiner must adhere to the spe- istics, which may limit their generalizability. There- cific rules for use of the test. For example, forensic fore, experts should be aware of how closely the eval- experts should not administer a psychological test to uee resembles the sample on which a given test is evaluees outside the standardization sample of the based. Instruments are valid only if the individual test (e.g., the Static 99 cannot be used to assess risk in resembles the group for which the scale was devel- female sex offenders).117 oped. Evaluators should be aware of both the Psychological testing can be subclassified by the strengths and limitations of actuarial tests, given that required qualifications of the administrator (psychol- the tests support probabilistic statements concerning ogist versus nonpsychologist versus trained specialist large groups, but do not permit determinations

Volume 43, Number 2, 2015 Supplement S27 Practice Guideline: The Forensic Assessment about the risk of recidivism, guilt, or innocence of an 8.5. Clinical Testing and Imaging individual or support statements about the individ- Clinical tests such as electroencephalography and ual’s predicted actions in the ensuing years. Claims neuroimaging are attractive to the legal world be- made for tests on web sites established by the tests’ cause they give the impression of independent objec- authors should be treated with caution. Forensic psy- tive evidence of an altered brain. Forensic psychia- chiatrists should review both supportive and critical trists should be familiar with both current and past peer-reviewed literature concerning any actuarial in- techniques used to assess neurophysiological func- strument that they use to formulate their opinions. tion; more important, they should be aware of the They should also be prepared to articulate, in testi- substantial limitations that have been ascribed to mony or in a report, why they have not used instru- these methods to date. A standard reference textbook ments that other experts have employed. can assist in putting a visually dramatic finding in Structured professional judgment methods have context.126 In some circumstances, consultation evolved as a response to the acknowledged limita- with a colleague expert in the specific area may be tions of actuarial tests. This approach incorporates desirable. Similarly, if there is an unexpected or inci- clinical judgment without assigning numeric dental finding, it is wise to obtain independent veri- 119 probabilities. fication from an expert in neuroimaging. The rele- As actuarial scales and guides to clinical assessment vance (if any) of such findings to the legal questions proliferate, it is useful to consult the scientific litera- in a case should be carefully evaluated in the context ture as well as sites that provide links to information of the overall assessment. about specific instruments (e.g., the Psychopathy Checklist, Revised,120 the Static-99R,117 the Vio- 8.6. Penile Plethysmography and Visual Reaction lence Risk Appraisal Guide,121 the Sex Offender Risk Time Screening 122 Appraisal, and the Historical, Clinical, and Risk Penile plethysmography (PPG) and visual reac- 119 Management-20 ). Again, experts are cautioned tion time (VRT) are examples of tests based on vali- against relying solely on web sites of developers of the dated psychophysiologic observations: in penile vol- instruments. Attending training sessions on the use ume and circumference increase when men are of these guides is helpful and may be required for sexually aroused; and evaluees tend to look longer at certification to use the instrument (see Section 11, pictures of people whom they find sexually attractive 123,124 Risk Assessment). A useful review text on this than at pictures of those to whom they are not at- 125 subject is available. tracted. There is a substantial body of peer-reviewed discussion of PPG127,128 and some literature on 8.4. Physical Examination VRT.129 Experts who use either method to assess General physical examinations are typically con- sexual preference should be aware that neither test is ducted as part of the routine protocol during hospital designed to determine guilt or innocence.128,130 admission to hospitals, including forensic assessment These tests are currently of most use in assessing suit- or rehabilitation units. Although forensic psychia- ability for treatment and in tracking response to trists have training in medical examination, they are treatment, but are also useful in assessing anomalous typically consulted or retained to provide an expert sexual preference, particularly for risk assess- psychiatric opinion. In most cases, the physical ex- ments.131 PPG is available in both Canada and the amination is best conducted by medical colleagues, United States, but with different stimulus sets, as sets and the psychiatrists order, analyze, interpret and used in Canada that involve children cannot be used synthesize the results based on their broad medical in the United States because of concerns that such training. For example, if the forensic psychiatrist’s material might violate prohibitions against possess- opinion depends on a hypothesis that the evaluee has ing child pornography. undiagnosed myxedema, it is advisable to seek some For PPG, reliability and validity statistics have comment or confirmation by an independent endo- been published, but can vary between laboratories crinologist who is knowledgeable in thyroid disease. and among test stimuli.132,133 This test should be However, in some cases, examinations such as those conducted and interpreted only by qualified special- to detect tardive dyskinesia or cogwheel rigidity ists, with the voluntary, informed consent of the would be performed by the psychiatrist. evaluee.

S28 The Journal of the American Academy of Psychiatry and the Law Practice Guideline: The Forensic Assessment

VRT is another test that has gained some, if not of the litigation. A forensic psychiatrist can help widespread, acceptability in the field.132 It has the courts to address whether the alleged negligent act or advantage of being administered fairly easily by a omission proximately caused the claimed injury, but trained administrator using only a laptop computer. the psychiatrist should be careful not to attempt to Recent research has suggested acceptable sensitivity address questions beyond the specific one(s) asked by and specificity, and it has been ruled admissible in the court or retaining attorney.136 some (but not all) jurisdictions.134 Some contend Common cases in which psychic harm may be at that VRT measures can easily be voluntarily manip- issue include allegations of disability due to medical ulated by the evaluee, especially since the mechanism intervention, discrimination or harassment in em- of the test is widely available on the Internet. ployment, or PTSD or related illness due to a trau- matic event.136 In cases in which intentional or neg- ligent infliction of emotional distress is alleged, the Summary 8.6 Adjunctive Testing forensic psychiatrist is typically asked to assess and ● Forensic assessment instruments describe the evaluee’s level of disability, which can ● Psychological testing 45 ● help the court evaluate the level of damages. Ger- Actuarial tests and structured professional judgment guides 137 ● Physical examination and investigation basi recommends paying special attention to som- ● Neuroimaging and electroencephalogram atization, pre-existing conditions, diagnosable per- ● Penile plethysmography and visual reaction time sonality disorders, and malingering (see Section 10.5, Malingering and Dissimulation).

9. Opinions Summary 9.1 Psychic Harm and Special Concerns Once all pertinent information has been obtained, ● Preexisting conditions the forensic evaluator formulates an opinion. The ● Personality disorders opinion should be substantiated and its foundation ● Malingering 8 clearly delineated. The evaluator should keep in mind ● Somatization that the scientific foundation for the opinion may ● Genetic predisposition have to withstand a Daubert135 challenge in court. In ● Effects of litigation ● other words, the evaluator should ensure that the Causality scientific technique used is reliable and generally ac- cepted, among other factors.1 Many forensic evaluators provide a caveat that The evaluee may have a genuine psychiatric disor- their opinions are based on the information currently der that is nonetheless unrelated to the alleged in- available and that additional information may re- jury.76 For example, the claimant in a personal- quire further consideration and therefore could alter injury lawsuit may have had a major depressive the opinion rendered. When an opinion cannot be disorder before the accident that is the subject of rendered to a reasonable degree of medical certainty, the litigation, with no change in the severity of the referral source should be notified before the eval- symptoms after the event. In another example, a uator writes a report. In some cases, further informa- claimant may have a genetic predisposition toward tion or testing may be needed before the evaluator developing a particular mental illness, and finding can render a final opinion. The referring source may whether that illness was triggered by the event that nevertheless ask for a preliminary opinion. Although is the subject of the litigation usually requires a these opinions can be problematic and are not gen- multifactorial analysis. The psychiatrist should erally recommended, if a preliminary opinion is also consider whether the litigation may be affect- given, its limitations should be explained and the ing the claimant’s psychiatric symptoms.76,138 need for further information described. Hence, the forensic examiner must consider mul- tiple potential causes to determine what role, if 9.1. Nature of Psychic Harm any, the tortious event played. In civil cases alleging psychic harm, the evaluee If an evaluee has a pre-existing illness that was typically argues that psychiatric symptoms or current exacerbated or worsened by the tortious event, the disability is due to a tortious event that is the subject court may require evidence that the change was caus-

Volume 43, Number 2, 2015 Supplement S29 Practice Guideline: The Forensic Assessment ally linked to the event. During the assessment, the Many carriers ask about evidence of residual func- forensic psychiatrist should consider differential di- tioning. The evaluator should review the evaluee’s agnoses and be prepared to testify concerning the job description to respond with examples relevant to reason for the diagnosis vis-a`-vis other possible diag- the specific occupation.54 noses that would be more or less favorable to the If the evaluee’s employer has a same-occupation evaluee’s case. policy (a policy that mandates that the evaluee can- not be moved to a different type of employment), 9.2. Disability then there will be a question about restrictions or For disability determinations, opinions should ad- limitations in relation to the essential tasks of that dress the link between signs and symptoms, if any, of occupation. A restriction is an activity that an evaluee a mental illness and occupational impairment.139 In should not engage in because of the risk of exacerbat- workplace-related disability claims, the assessment is ing or precipitating psychiatric symptoms, whereas a conducted to answer one of the following concerns: limitation is an activity that an evaluee cannot engage “[w]hether the employee has a psychiatric diagnosis, in because of psychiatric symptoms (documented and if so, its duration, symptoms, and prognosis; the loss of function). There may be questions about how etiology or causation of the disorder and, specifically, long the impairments are likely to last, whether fur- its relationship to work; and whether the disorder has ther improvement is likely if treatment is optimized, resulted in a work-related impairment” (Ref. 72, p and whether the evaluee has reached maximum med- 307). For determining the degree of impairment, the ical improvement. The side effects of medication, the American Medical Association’s Guides to the Evalua- relapsing nature of an illness, the effect of the work- tion of Permanent Impairment can be an invaluable re- place on the disorder, and the presence of a substance source, and some disability determinations, such as use disorder should be considered.54 examinations for workers’ compensation, require Disability insurance policies may require claim- or recommend its use in the assessment and ants to be receiving treatment appropriate for their 45,76,140 report. condition. Therefore, questions about the adequacy of treatment are usually posed. The evaluator may be asked to make recommendations about optimizing Summary 9.2 Disability treatment and to offer an opinion about whether a ● Link between the mental disorder and occupational impairment medical condition could be affecting the response to ● Etiology of the mental disorder ● treatment and whether further assessment would be Restrictions 54 ● Limitations helpful. The additional assessment may include rec- ● Prognosis ommendations for psychological or neuropsychological ● Adequacy of treatment testing and for medical testing or consultation. ● Secondary gain/malingering There are likely to be questions about secondary gain, exaggeration, and malingering.54,72 Alternative causes of current claimed impairment should be con- Disability insurance carriers generally provide a sidered.73 Evaluees may have a history of positive list of questions for the expert, and the report should motivation to return to work, reflected by unsuccess- respond to these specific concerns.54 The questions ful attempts to return, use of strategies to optimize may vary, but they ordinarily center on whether the performance, and efforts to find alternative, less evaluee is impaired as a result of mental illness or stressful positions.72 Others may have taken the po- substance abuse to the degree that occupational func- sition, from the onset of symptoms, that they can tioning is compromised.54,73 The first question is never work and may have applied for long-term dis- usually about the diagnosis and its foundation, in- ability insurance before receiving any treatment, or cluding the signs and symptoms that support the they may not have been compliant with treatment. diagnosis. The psychiatric history can be used as sup- The evaluator should summarize information about porting evidence, as well. The next questions nor- job performance, attitude about working in current mally deal with the relationship between the symp- and previous jobs, consistency between reported toms and signs of the mental illness and the degree of symptoms and descriptions of daily activities, and impairment, if any, in occupational functioning. the results of psychological and neuropsychological

S30 The Journal of the American Academy of Psychiatry and the Law Practice Guideline: The Forensic Assessment tests in assessing secondary gain, exaggeration, or ma- example, fitness-for-duty assessments of law enforce- lingering. If there are no specific questions, then the ment officers address whether the evaluee can safely directions given above can be used as a framework for carry a firearm.95 A fitness-for-duty assessment of a organizing the overall opinion. physician examines whether the physician has psy- chiatric impairments that would negatively affect the 9.3. Fitness for Duty ability to practice safely and whether oversight and 42,52,96 As for other types of reports, a fitness-for-duty monitoring of the practice is indicated. How- (also called fitness-to-work or fitness-to-practice) re- ever, the evaluating forensic psychiatrist does not of- port should address the referral questions. The em- fer an opinion about the physician’s ability to prac- ployer is seeking information about whether the em- tice according to the standards of the physician’s ployee is currently fit for duty, whether the employee specialty; that matter is decided by peer review. can return to work with or without restrictions or accommodations on a full- or part-time basis, 9.4. Prognosis whether there is a need for workplace monitoring, An opinion concerning prognosis is essential to and whether treatment is necessary to maintain oc- most civil forensic assessments because it has bearing cupational functioning. In many cases, there are con- on the assessment of damages. In many cases, an cerns about whether the employee poses a serious risk evaluee may not have had adequate treatment, and of harm to self or others. the prognosis should be given under two scenarios: The answer may not be a simple yes or no. The first, assuming that the evaluee remains on the cur- evaluator’s opinion may be that the employee is tem- rent treatment regimen and, second, considering the porarily unfit for duty, but that the impairments are likely improvement with enhanced treatment.54 In expected to resolve with treatment. Under these cir- formulating an opinion, it is helpful to consider the cumstances, the opinion should include an estimate natural history of the disorder; including the positive of the time that should be allowed for improvement and negative prognostic signs; residual functional ca- sufficient to enable a safe return to work. The evalu- pacity; psychiatric history, including response to ator may recommend placing conditions on a return treatment; and personal history.45,54 Other consid- to work, such as the employee’s continued accep- erations include motivation, psychosocial circum- tance of treatment and implementation of a work- stances, physical illness, adverse effects of medica- place monitoring agreement.45 tion, and comorbidity. Factors other than a Alternatively, improvement sufficient to enable a psychiatric disorder may contribute to the evaluee’s return to work may be unlikely. In that situation, claim of impairment. there may be a conclusion that the employee is permanently unfit for duty. In other cases, an em- 9.5. Treatment Recommendations ployee may be currently unfit, but further assess- The psychiatrist should determine and describe ment may be necessary to determine whether re- any treatment the evaluee received before the foren- sponse to treatment will be sufficient to enable a sic assessment, the evaluee’s adherence to treatment, return to work. and the evaluee’s response to treatment. The forensic In recommending accommodations, the evaluator psychiatrist also may have to determine the treat- should consult with the employer concerning which ment necessary to improve the evaluee’s level of func- accommodations are available to the employee. In tioning and whether additional or different treat- many cases, the employee may be able to return to an ment is likely to help.136 This analysis could be alternative position permanently or temporarily. appropriate in a variety of civil (e.g., disability, fitness Many employers allow a return on a part-time basis for duty) and criminal (e.g., sentence mitigation, risk as long as the accommodation is time limited. If a for recidivism) evaluations. workplace monitor is recommended, then there The outlook may depend on the evaluee’s willing- should be instructions for the monitor concerning ness to undergo treatment. “Sometimes a consultant the symptoms or signs indicating a relapse that ne- has to report that further improvement of the [eval- cessitates intervention.54 uee’s] physical or emotional symptoms is unlikely There may be questions about safety consider- unless the [evaluee] is able and willing to enter psy- ations related to the occupation of the evaluee. For chiatric treatment. This is frequently indicated when

Volume 43, Number 2, 2015 Supplement S31 Practice Guideline: The Forensic Assessment

[an evaluee] is immobilized by anger or depression” ion. For these reasons, it is most appropriate to con- (Ref. 141, p 169). sider the degree of impairment the symptoms are Whenever possible, treatment recommendations causing and the degree of disability affecting the should be evidence based. The practice guidelines competence or capacity under evaluation. published by the American Psychiatric Associa- tion142 can help the evaluator to identify appropriate treatments for the evaluee’s condition.136 Summary 10.1.1 Evaluees with Psychosis ● Accuracy of history ● Contemporaneous record (notes, recordings) 10. Special Situations ● Referral for treatment ● Prevention of possible violence 10.1. Challenging Assessments Certain evaluee presentations can make forensic assessment more challenging. The approach to as- For evaluees with severe mental illness, the evalu- sessing these evaluees must be tailored to the assess- ator may find it necessary to arrange for treatment. ment setting, the type of assessment being per- Although forensic psychiatrists do not function as formed, and the need for clinical intervention for the treating psychiatrists, they should act responsibly evaluee. In such difficult assessments, the safety of concerning evaluees’ health needs, similar to physi- the evaluee and evaluator must be of paramount cians’ duties, as set out in the American Medical As- concern. sociation’s Opinion on Medical Testimony.22 The 10.1.1. Evaluees with Psychosis evaluator may have to initiate an assessment for hos- pitalization of an evaluee or to refer the evaluee to an In certain forensic assessments, the evaluation of outpatient psychiatrist or mental health clinic for an acutely psychotic client may present challenges, treatment. If at all possible, unless there is an emer- especially if the assessment focuses on past mental gency, forensic evaluators should avoid providing di- status (e.g., mental status at the time of a criminal rect treatment to evaluees (acting as both the treating offense or of a personal injury), rather than present psychiatrist and the assessor143), in accordance with status. Nevertheless, it is important to perform and the ethics guidelines established by AAPL.39 preferably record results of a mental status examina- Finally, for safety reasons, careful preparation be- tion as soon after the original offense or event as fore the interview can be helpful in case of unpredict- possible, although current psychotic symptoms may able behavior in a psychotic evaluee. Section 5.4.1, prevent evaluees from accurately reporting the events Physical Setting, and the following section review the around the time of a personal injury or their mental physical setting and other factors relevant to aggres- status at the time of an alleged offense. Evaluees with sive evaluees and safety. psychotic symptoms may also demonstrate impair- ment in their interactions with the interviewer. If 10.1.2. Aggressive Evaluees paranoid, they may withhold information from the In the course of their practice, all forensic psychi- evaluator that would be crucial to formulating the atrists have to deal with evaluees with a history of forensic opinion. If delusional, they may incorporate aggression. In one study examining aggression to- the evaluator into the delusional system. Having ward forensic evaluators, 42 percent reported having recorded the original mental status examination, the received threats of physical harm or nonviolent in- expert should conduct follow-up visits to obtain the jury.144 When aggressive behavior toward clinicians information needed for a complete assessment. In occurs in forensic settings, it may be related to psy- criminal responsibility assessments conducted long chosis or may be precipitated by situational factors, after the arrest, psychotic symptoms may impair a such as the denial of an evaluee’s demands. criminal defendant’s ability to remember the events Dealing with aggressive evaluees can be stressful, accurately. Conversely, if the forensic assessment fo- and various management strategies are available. cuses on a present mental status assessment (e.g., These include informing coworkers that an evalua- competence to stand trial or disability), the presence tion is going take place, carefully confronting the of psychotic symptoms is a particularly relevant and evaluee when indicated, avoiding the evaluee, seek- primary consideration in the formulation of an opin- ing consultation from a peer, and notifying available

S32 The Journal of the American Academy of Psychiatry and the Law Practice Guideline: The Forensic Assessment security personnel. Confronting the evaluee about complaint with the police, consultation is recom- aggressive behavior has its advantages and disadvan- mended with another clinician, the retaining party, tages, but it should always be done with caution. or legal and administrative staff (if the evaluation is Anticipation of potential aggression is an impor- conducted in a facility setting). tant strategy for enhancing clinician safety. Clinical, psychological, and historical factors increase the po- 10.1.3. Uncooperative Evaluees tential for violence. Such factors include a history of In forensic practice, clients frequently fail to at- repeated violence, agitation, anger, disorganized be- tend the assessment or refuse assessment. This behav- havior, intoxication, personality disorder, noncom- ior can be particularly troublesome when an assess- pliance with psychiatric treatment, threat-control- ment is ordered by the court. A court order is not a override delusions, and poor impulse control. guarantee of compliance. The first approach to re- Several techniques can be useful in enhancing fusal is a determination of whether it is purposeful safety. First, forensic examiners should always main- and competent. If the client understands the nature tain a humane and respectful approach to evaluees. and purpose of the assessment, the agency of the Recognizing affect, validating it when appropriate, evaluator, and the potential consequences of refusing and encouraging the evaluee to discuss feelings can the assessment and if he has a nondelusional motive reduce the risk of violence. It is also important to for refusing, his decision may be a competent one. keep an appropriate physical distance from poten- Once this determination has been made, the evalua- tially violent evaluees, at least an arm’s length. Ide- tor should inform the retaining attorney or judge of ally, an interview with a potentially violent evaluee the situation. Because of the medicolegal context for should occur in a quiet, comfortable setting with forensic assessments, malingering is a consideration both parties seated. Access to an exit door should be in evaluees who do not cooperate (see Section 10.5, unimpeded for both the clinician and the evaluee. Malingering and Dissimulation). Particular care and preventive planning are necessary If a forensic evaluee remains uncooperative, the if a potentially violent evaluee is interviewed in a evaluator may have to resort to conducting an assess- private office. If a private office is the only available ment through the use of collateral sources (see Sec- location, the presence of family members and staff tion 5.3, Collateral Information). If a forensic opin- can be useful in preventing or defusing violence. ion is offered through the sole use of collateral Finally, in dealing with aggressive evaluees, evalu- sources, the evaluator must inform the court in both ators must learn to recognize and manage counter- writing and testimony that a personal examination transference. If an evaluator has feelings of arousal, was attempted and was unsuccessful and that the attraction, or anger during an assessment, the reac- opinion is being offered through the use of collateral tion may be due to countertransference. Methods sources. Limitations of the opinion should also be useful in managing countertransference include con- disclosed. sultation with a colleague, clinical case conferences, In some jurisdictions, depending on the type of ethics training, and training in managing aggressive assessment, courts allow the presence of counsel at behavior. Bringing a colleague to the interview is psychiatric examinations in criminal forensic assess- sometimes helpful in diffusing the transference and ments, which can facilitate participation of an unco- providing security. When an evaluator becomes operative evaluee. It is important to consult the stat- aware during an interview of strong feelings of coun- utes or case law in the jurisdiction if this is tertransference that interfere with the process or its considered.145 In civil assessments, the retaining at- objectivity or with safety, he may wish to bring the torney or the evaluee’s attorney may be asked to fa- interview to a close and resort to one of these cilitate the evaluee’s participation, but there is no methods. clear guidance on whether counsel can be present at If an evaluee assaults the forensic evaluator, the the assessment. If present, the attorney should not be evaluator should consider withdrawing from the as- allowed to disrupt the assessment in any way. Con- sessment, as his objectivity may be compromised. sideration should be given to ensuring that the eval- The prosecution of such assaults is controversial, es- uee is unable to make eye contact with counsel before pecially if the evaluator has been hired by the defense answering questions, to avoid nonverbal cues that attorney. Before deciding whether to file a formal could, either intentionally or unintentionally, sug-

Volume 43, Number 2, 2015 Supplement S33 Practice Guideline: The Forensic Assessment gest answers. For example, video-recording equip- Summary 10.1.4 Causes of Mutism ment can be set up in the assessment room and a ● Congenital aphasia monitor in an adjoining room to permit the attorney ● Neurologically acquired aphasia ● to observe the evaluation without intruding. Catatonia ● Conversion disorder Some forensic evaluees are uncooperative through ● Selective concealing their genuine psychiatric symptoms in an ● Malingering attempt to appear mentally healthy. This phenome- non, referred to as dissimulation, is described in Sec- tion 10.5.5, Dissimulation. with mutism being one of many symptoms. By con- 10.1.4. Mute Evaluees trast, in malingering, there is frequently a history of antisocial conduct, an extensive criminal record, and When evaluating mute clients, the main challenge a refusal to submit to psychological testing. Inpatient lies in the determination of the etiology of the mut- assessment is often necessary to distinguish between ism (congenital aphasia, neurologically acquired these entities. aphasia, catatonia, conversion disorder, or selective aphasia). These assessments often involve consulta- 10.2. Child and Adolescent Forensic Assessments tion with other nonpsychiatric clinicians and inter- Psychiatrists may be requested to conduct a foren- views with collateral sources. sic psychiatric assessment of a child or adolescent for Evaluees with congenital, nonselective mutism criminal or civil proceedings. Generally, all assess- usually have a well-established medical history of the ments of children should be conducted by clinicians disorder and present particular challenges, primarily with training or qualification in child psychiatry. Al- due to communication limitations. Forensic assess- though the general principles outlined in the sections ment may be possible only if the client can commu- regarding the assessment of adults also apply to the nicate with formal American Sign Language. Mut- assessment of children and adolescents, there are ism has been well recognized as a limitation to some important additional areas to consider. criminal competence.146 Mute evaluees cannot be tried without meeting a threshold of competence for Summary 10.2 Child and Adolescent Assessments: Special which the standards have been articulated. Mutism Considerations in an evaluee remains a rare and complicated psycho- ● Informed consent or assent legal situation. ● Observation by third parties The differentiation between neurologically ac- ● Avoidance of leading questions in interviews quired aphasia and selective mutism usually requires ● Published standards for sexual abuse or custody consultation with a neurologist and may necessitate neuroimaging. Difficulty with word-finding and speech organization are more common than com- 10.2.1. Informed Consent plete mutism. Catatonia generally includes addi- In most circumstances, minors cannot provide in- tional findings, including posturing, negativism, formed consent. Therefore, consent for the assess- waxy flexibility, and other symptoms. In depressive ment and release of information must be sought from stupors, prominent psychomotor impairment is also those legally empowered to provide them: typically present. Careful observations of the evaluee should parents or guardians, or, if the minor is a ward of the be documented and records and collateral informa- state, an appropriate representative.147,148 Parents tion reviewed. It is within the expertise of a psychia- and guardians may also be required to provide con- trist to make a diagnosis that will be of help to the sent for audio- or video-recording. There are excep- court. tions: cases in which minors may provide informed The most difficult differential diagnosis of mut- consent include minors waived to adult criminal ism is in distinguishing a conversion disorder from court, emancipated minors, minors undergoing pa- malingering (i.e., whether the evaluee’s mutism is rental bypass evaluations for abortion, and mature under voluntary control). In conversion disorder, minors. Also, fundamental rights may not be waived there is often a history of conversion symptoms and by anyone other than the person who holds them, evidence of repression and dissociative phenomena, even if that person is a minor (e.g., a parent cannot

S34 The Journal of the American Academy of Psychiatry and the Law Practice Guideline: The Forensic Assessment waive a minor’s right to avoid self-incrimination). ment process. Arguments for others being present are When application of these exceptions and rights be- often made on the basis that the child needs protec- comes complicated, states may appoint a guardian ad tion or support because of the risk of harm during the litem to help the court weigh the various factors and assessment. The presence of a third party may be consider the various interests in a case. State evalua- appropriate when a young child has significant sep- tors investigating an abuse or neglect report do not aration difficulties, has demonstrated an inability to need consent in most jurisdictions. be interviewed alone, or needs an interpreter.151 If Nevertheless, informed assent should be sought at others are to observe, it is important to set appropri- the outset of an interview of a child or adolescent, ate ground rules (such as whether the observers will even if the minor cannot consent. Minors should be be in view of the child and whether they can partic- given information in developmentally appropriate ipate). For some types of assessments (especially sex- terms, regarding the nature of the assessment, who ual abuse investigations), video-recording is recom- will read the report, and other limits on confidenti- mended and is becoming the standard (see Section ality; as well, they should be notified that they do not 5.4.3, Recording). have to answer questions. The evaluator should ask Assessments of children and adolescents for civil child evaluees to state their understanding of the pur- suits often involve observations of the parent–child pose of the assessment and whether anyone has told relationship and sometimes a child–sibling relation- them what to say. Child evaluees should be informed ship. In general, the nature and length of these col- that they can ask questions about the process at any lateral observations are negotiated in advance with all point during the examination and that they can take parties. breaks and speak with their parent or parents when- 10.2.3. Collateral Interviews and Information ever they wish to do so. Again, there are exceptions: In clinical work with children and adolescents, psychiatrists evaluating possible sexual abuse gener- their parents, guardians, or other caretakers are rou- ally do not tell minors exactly what they are evaluat- tinely interviewed to obtain additional history be- ing because it would be a suggestive intervention, nor cause children are not mature historians or report- do they reveal what the likely outcome of the assess- ers.151 In cases in which the parents are not parties to ment could be, as the minor may want to protect the the litigation, whether the evaluator can have access parent. to parents is often decided by the court. In some Interviews of children give rise to some particular forensic assessments of minors, involving parents and ethics-related problems that the evaluator should 148,149 others in the evaluation is crucial (e.g., custody as- consider. The person giving consent may not sessments).152 In some legal situations, including be acting in the best interest of the child. For ex- those that are particularly contentious, the parent, ample, a parent in a custody dispute may act in the guardian, or caretaker may refuse to provide collat- parent’s own interest. If the child is a state ward, eral information about the child during the assess- the state’s interest and child’s interest may diverge. ment. In this case, the forensic evaluator should con- Because of their immaturity, minors are less likely sider alternative methods of obtaining important than adults to understand the rights that are de- collateral data. Such methods include having the par- scribed to them. For example, a child may feel ent, guardian, or caretaker questioned during a de- more obliged to cooperate because of deference to 150 position or requesting a court order that the party authority, be less likely to understand the con- complete relevant child-assessment forms. Because a sequences of certain admissions, or be overly trust- significant portion of a child’s daily life involves ing of the interviewer. school, forensic evaluators may require a detailed re- 10.2.2. Observation by Others view of a child’s academic records. Requests from a third party (such as a parent, ther- 10.2.4. Interviewing Style apist, or attorney) to observe a child’s or adolescent’s Interviewing children and adolescents involves forensic assessment are much more common than techniques different from those used in interviewing requests to observe an adult assessment. Honoring adults, and therefore requires special training. Of such requests should be discouraged, as the presence particular relevance in forensic interviews of children of third parties may substantially influence the assess- are the significantly greater effects of leading ques-

Volume 43, Number 2, 2015 Supplement S35 Practice Guideline: The Forensic Assessment tions and prior suggestion, since children are more the care that was provided to the child or adolescent. suggestible than adults.153,154 As in adult cases, medical malpractice consists of four 10.2.5. Published Standards for Sexual Abuse and Child key components, often referred to as the 4 Ds: a duty Custody Assessments to the patient, and a dereliction of that duty, which Because sexual abuse and child custody assess- directly results in damages. For negligence to be estab- ments focus on children, but children are formal par- lished, all four components must be present. There- ties to the litigations, evaluations of children have a fore, the forensic assessment determines not only different structure than the one used in the typical whether there were deviations from the standard of individual-focused forensic assessment. Some profes- care through acts of omission or commission, but sional organizations have published standards or also whether the deviations were directly or proxi- practice parameters for the conduct of these assess- mately related to the claimed emotional damage. ments.152,155 Several published sources provide Third, a psychiatrist may be requested to conduct guidance for child abuse and custody assessments, a a psychological autopsy of a young person for the subject that is beyond the scope of this Guideline. purpose of retrospectively evaluating mental status at Forensic evaluators should be aware that new allega- the time of death. In some situations, although the tions of child abuse made by a child or adolescent actual cause of death (such as a gunshot wound to the during the course of the assessment necessitate refer- head) may be clear, the manner or mode of death ral to child protection services. may be unclear. Mode of death is classified into four types—natural, accidental, suicide, or homicide— 10.2.6. Civil Litigation Involving Children and Adolescents and is directly relevant to civil litigation involving There are common situations in which a psychi- insurance policies, which do not provide coverage for atric assessment of a child or adolescent may be rel- suicide-related deaths, and to investigations into evant during the course of civil litigation. First, the whether a third party or a product caused the death. psychiatrist may be asked to evaluate whether the Fourth, disability assessments (such as Social Se- child was affected emotionally as a result of an event. curity assessments) may lead to civil litigation when The plaintiff’s complaint outlines the alleged cause of the evaluated child or adolescent is denied financial injury and claims mental injury with phrases such as benefits and coverage. Fifth, special education assess- emotional distress, extreme emotional distress, emo- ments in a school setting may also be legally chal- tional damages, psychic harm, or mental anguish. lenged when there is a disagreement between the par- The relationship between an event and the resulting ents or guardian and the school concerning its emotional injury can be grouped into two broad cat- assessment or recommended education plan. egories: a physical injury causing emotional harm (physical–mental) and emotional injuries causing Finally, child custody assessments nearly always emotional harm (mental–mental). require a forensic assessment of the child, of each Common examples of physical injuries that can parent’s or guardian’s current ability to provide care lead to mental injury include nonvehicular accidents, for the child, and of the child–parent relationship, of vehicular accidents (e.g., motor vehicle, airplane), child–sibling relationships, and of the best interest of natural disasters (flood, fires, earthquakes), and phys- the child. ical or sexual abuse. Emotional injuries that can re- 10.3. Assessments of Persons with Intellectual sult in a mental injury are wide-ranging and include Disability the loss of a parent or close relative, witnessing harm caused to others, and being verbally victimized (such Forensic psychiatrists are likely to encounter indi- as taunts associated with sexual harassment, bullying, viduals with intellectual disability (ID). Competent or threats from others). assessment of an evaluee with ID requires the evalu- A second important category of civil litigation in- ator to adapt the approach to account for the unique volves medical malpractice or negligence. In this sit- characteristics of the evaluee.156 uation, the psychiatrist is asked to review a case to Laws surrounding and defining ID are specific in determine whether any providers (e.g., doctors, psy- different jurisdictions, and the forensic evaluator chologists, nurses, social workers) or institutions should be familiar with such laws before conducting (e.g., hospitals, detention facilities) were negligent in an assessment.

S36 The Journal of the American Academy of Psychiatry and the Law Practice Guideline: The Forensic Assessment

Summary 10.3 Definition of Intellectual Disability accurate assessment. Both recent and long-term his- ● An intellectual disabilities (ID) were a developmental impairment tories of the individual, including their prior level of that results in cognitive ability and adaptive functioning that are functioning and usual behavior, are helpful in under- substandard to a significant degree. More specifically, ID is defined by a combination of three factors: standing the context of the situation. Use of previous ● Deficits in intellectual functioning confirmed by both clinical records and reports are likely to be helpful. School assessment and individualized standardized intelligence testing. and vocational records and, in the United States, ● Deficits in adaptive functioning in one or more of the following adaptive skills areas: Individualized Education Plans (IEPs), should be ● Communication obtained. ● Social participation During the clinical assessment, explore the advan- ● Independent living tage of including family members or familiar staff in ● Onset during the developmental period. some situations. Having caregivers present serves a Unlike the the DSM-IV-TR, the DSM-5 rates severity of ID by severity of adaptive functioning, not by IQ score. dual purpose: first, the evaluee benefits from the pre- dictability fostered by the presence of someone famil- iar; second, the evaluee’s regular caregivers are 10.3.1. Nomenclature needed to provide history. Hence, a caregiver’s pres- The nomenclature regarding persons with ID has ence may be helpful in an initial interview, but may evolved over time. Recently, there has been a change not be necessary as the evaluation proceeds or in from use of mental retardation (DSM-IV-TR) to in- subsequent interviews. It is, however, beneficial to tellectual disability (DSM-5). In light of this shift in have caregivers available nearby throughout the eval- terminology, this document uses the current term. uation to provide assistance or collateral informa- An important concept to remember when talking tion. As noted earlier, in some cases the presence of about people with ID is people first. For example, family members or staff can encourage disruptive be- using the phrase a person with ID is more respectful havior by providing an audience. and less stigmatizing than an ID person. The presence of an ID often renders the evaluee 10.3.2. Conducting the Assessment poorly equipped to provide a history. Limitations in the person’s capacity to communicate verbally and to When conducting an assessment of a person with articulate the nature of the problem pose a challenge. ID, the psychiatrist must take into account not only The caregiver’s vantage point may be comprehensive the current presentation but also the underlying con- or may provide only limited information. In addi- dition. These considerations do not require evalua- tion, caregivers or family members of a person who is tors to abandon their usual approach completely; undergoing a forensic assessment may be reluctant to rather, they should adapt their usual approach to fit the unique circumstances. There are several strategies provide accurate or complete information if they are that can improve the likelihood of a successful concerned that full information may harm their assessment.157,158 interests. Identify an appropriate location for the assessment During the assessment, the psychiatrist should in a safe setting that is quiet and private, if possible. take time to explain tests and procedures as simply The assessment and surrounding circumstances can and clearly as needed for the evaluee to follow what be frightening, distracting, or overstimulating to a is happening and to reduce the evaluee’s anxiety. A person with ID. A confounding variable is that some person with ID may not be able to give consent for individuals with ID enjoy the attention they receive the assessment or understand its implications; for disruptive behavior, especially when other family however, it may be helpful to obtain assent. The members or staff members constitute the audience. evaluator may have to obtain full and informed Finding a quiet, private place can limit this con- legal consent from a guardian or obtain a judicial founding factor. order. Seek collateral sources of information. Persons An interdisciplinary team approach to assessment with ID have difficulty providing a history, and their and treatment planning is often necessary when eval- reliability as reporters may be compromised. Con- uating persons with ID. Similarly, in the forensic tacting family members, coworkers, teachers, and assessment, it may be necessary to engage staff from any other involved person is vital to achieving an other disciplines, such as a psychologist skilled at

Volume 43, Number 2, 2015 Supplement S37 Practice Guideline: The Forensic Assessment conducting psychological or neuropsychological ers can contribute data to aid in comparing the eval- testing. uee’s acute presentation with baseline condition and 10.3.3. Direct Observation of Behavior level of function. Consideration should be given to a suitable envi- 10.3.5. Degree of Suspicion About Intellectual Disability ronment for the assessment of evaluees with ID. It is The evaluator’s degree of suspicion about ID dur- often difficult to obtain a reliable or comprehensive ing the assessment can increase the likelihood that picture of persons with ID in an office or other loca- ID will become a relevant factor. If there is a low tion outside their familiar environment. Observing degree of suspicion, the evaluator may overlook or evaluees in their normal, everyday surroundings can minimize deficits. If there is a high degree of sus- yield a wealth of information. picion, the evaluator may be inclined to look for 10.3.4. Complications in Assessment clarification of abilities and deficits, obtain spe- Dual diagnosis is a phrase in psychiatry that usu- cific testing, and seek collateral sources of infor- ally means the co-occurrence of mental illness and mation. Evaluators should have a high degree of substance use. In the context of ID, however, it has suspicion if there are any indications of ID, to an alternative meaning: the co-occurrence of ID and ensure that complete information is obtained and psychiatric illness. a complete assessment is conducted. In a standard psychiatric practice, a patient would 10.3.6. Evaluator Bias have been identified as having ID, and longitudinal Evaluator bias may also play a significant role in records would provide a frame of reference. In con- 162 trast, in forensic psychiatry, individuals encountered the formulation of the forensic opinion. The eval- may have ID that has not yet been diagnosed. The uator may cast the findings in a better or worse light characteristic signs and symptoms of ID may be based on a expectations, desired outcome, political masked or enhanced intentionally by the evaluee. For considerations, or pressure from the referring agent. example, evaluees who believe they will benefit from The attitude and conduct of the evaluee may also feigning ID may try to hide their intellectual and contribute to bias. An adversarial evaluee may be social capabilities. Alternatively, individuals may try evaluated differently from a cooperative one, despite to appear intelligent to conceal their disability. Col- their having the same underlying diagnoses. lateral sources of information are integral to accurate To avoid bias, it is important to keep in mind that assessment (see also Section 10.5, Malingering and an evaluee with ID may demonstrate poor tolerance Dissimulation).159,160 of frustration, may become irritable and exhibit be- havioral decompensation, or may develop psychiat- ric symptoms that become the focus of an assess- Summary 10.3.4 Strategies for Assessments of Persons with ment. ID often results in increased vulnerability to Intellectual Disability stress and in sensitivity to changes in the environ- ● Choose an appropriate location. ment. In fact, the presence of ID may lead to vulner- ● Have family and caregivers present. abilities or set the stage for the decompensation that ● Obtain a reliable history. ● Ensure informed consent. causes the situation that necessitates a forensic psy- ● Use a team approach. chiatric assessment. ● Use direct observation in a familiar environment. Short- and long-term stressors that may trigger such behavioral problems in individuals with ID or dual diagnosis include frustration with difficulty It is essential to distinguish among underlying communicating, using problematic behavior as a medical illness, environmental stressors, and the on- means of communication, or both; alterations in set or exacerbation of a psychiatric disorder as poten- conditions, such as medication changes, loss of care- tial causes of behavioral decompensations. Such a takers or loved ones, physical discomfort or illness, differential diagnosis requires a thorough history and stigmatization, or bullying; emotional conditions re- physical examination, using collateral sources to sulting from psychiatric disorders (in cases of dual compensate for the patient’s potential difficulties diagnosis); and frustration due to realization of men- with self-reporting.161 The evaluee’s regular caregiv- tal deficits.161

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If disruptive behavior has been effective in remov- and may preferentially or subconsciously skew his ing a person with ID from an uncomfortable situa- (the physician’s) beliefs according to the strength of tion in the past, the use of such behavior may be the information received in the assessment.173 If not reinforced and repeated. Every effort should be made carefully managed, these preconceived notions may to understand and contextualize this behavior. result in misattributions and reinforcement of cul- tural stereotypes. Racial and cultural biases not only 10.4. Cultural Factors in Forensic Evaluations influence the ways in which clinicians diagnose dis- 10.4.1. Contextualizing Culture, Race, and Ethnicity in Forensic orders, but also affect the types of treatment Assessments proposed. An understanding of race, culture, and ethnicity 10.4.3. Culture as Part of Formulation plays an important role in the medicolegal system.163 Regardless of whether they are attorneys, probation When considering culture as part of the case for- officers, judges, experts, witnesses, or jurors, people mulation process, the forensic psychiatrist must first who participate in legal proceedings bring their own identify the traditions, values, and behavioral norms preconceived notions, attitudes, and value systems to of the evaluee that are pertinent to the consultation the table.164 These preconceptions affect their rela- questions. Asking evaluees questions that explore the tionships with others, especially during interpersonal different complex components of their identity and interactions and decision-making. self-concept may reveal their culturally syntonic be- It is widely accepted that mental health clinicians lief systems and help the psychiatrist to situate them must possess an ability to provide a cultural con- in their social world.163 text and formulation for clinical and forensic Culture should be considered in appreciating the work, to provide effective assessment and treat- evaluee’s distinctiveness, with care taken to avoid ste- ment of diverse populations. Cultural formulation reotyping.174 The psychiatrist should take into ac- skills are rapidly becoming accepted in all aspects of count that many people have had religious or cultural psychiatric practice, including forensic psychia- “personal experiences that have contributed to the 165 try. Overcoming potential language barriers and shaping of [their] moral life” (Ref. 34, p 372). Most comprehending the cultural beliefs and values held people believe that the legal system is fair, but some by an evaluee, may be important when providing a disagree46 and may have complex sociocultural rea- comprehensive and meaningful assessment of the sons for their belief.175 Even personal concepts of evaluee’s mental health and overall functioning. Cul- wrongfulness may be steeped in cultural and social tural considerations should inform the forensic as- definitions, and these concepts may be taken into sessment of psychological and behavioral problems, consideration in certain situations, such as evalua- since the legal matters prompting such assessments, tions for mitigating factors in sentencing.164 whether civil, criminal, or family-related, often have 163 174 Aggarwal and Kirmayer both argued that sit- serious consequences.164 uating behavior in its cultural context often provides 10.4.2. Disparities in Diagnosis insight and clarification into an individual’s reason- Several researchers have identified disparities in ing process. Through careful assessment, the forensic how psychiatric disorders are diagnosed in racial and psychiatrist’s role in exploration of the cultural contexts of behavior may also help explain the ethnic minorities. For example, blacks are diagnosed 176 more frequently than whites with psychotic disorders behavior. and less often with mood and anxiety disor- In addition to the forensic psychiatrist’s duty to ders.166,167 These diagnostic differences may be in- provide culturally informed assessments, cultural fluenced by cultural differences in communication concerns arise in other forensic settings. Various au- and interaction styles, values, and belief systems in thors have commented on the cultural context of the the doctor–patient dyad. It has been asserted that this forensic psychiatrist’s role in the courtroom.25,26,177 is especially true when patients from minority groups Conveying the nuances of culture and identity in the receive treatment and care from members of domi- courtroom may facilitate increased empathy that nant groups.168–172 A physician may hold a precon- could affect the assessment of a defendant’s ceived notion that a patient has a certain condition culpability.163,174,178

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10.4.4. Cultural Identity 10.4.5. Culture and Diagnosis Cultural identity should not be assumed but There are many cultural differences in the expres- should be explored.172 Culture may have a strong sion of mental illness. As previously discussed, mem- influence on boundaries and what is considered ac- bers of various nondominant groups may experience ceptable behavior during the assessment.177 Some mental illness differently or communicate their cultures use more physical touching, whereas in distress in different ways.164 Defining entities as other cultures, an evaluee may think it inappropriate culture-bound syndromes can be helpful in conceptu- to shake hands with an evaluator of the opposite alization, but concerns have been raised as well. In- sex.36,164 Looking directly at a person is considered cluding culture-bound syndromes in the DSM raises disrespectful in some Arabic and Asian cultures. the question of whether these syndromes meet crite- Extra caution may be needed in the nonconfiden- ria for mental illness sufficient to be used in a defense tiality warning of some patients because of poten- of not guilty by reason of insanity.179 For example, tial difficulty in their understanding that there is latah is a startle-induced dissociative reaction de- 164 no doctor–patient relationship between them and scribed in the Malay culture. Although amok is their examiner. The evaluator should be even more often regarded as a Malaysian culture-bound syn- careful to ask open-ended questions, rather than drome, amok-like indiscriminate massacre behavior closed questions, as in some cultures a yes reply after a stressor has been observed in other cul- 164,180 may simply acknowledge that the evaluee is tures. Belief in voodoo death, which is thought listening.164 to occur when a person breaks a taboo and then Competence in cultural formulation includes re- suddenly dies, has been observed in multiple 164 spect for and knowledge of other cultures, as well as cultures. 36 self-assessment to guard against cultural biases. 10.4.6. Language Differences Culture should be integrated into assessment and service delivery. In the United States, the evaluator is The evaluator should arrange for the interview to often of the dominant group while the forensic eval- occur in the evaluee’s primary language or bilin- gually, as misunderstandings due to language differ- uee may be of a minority ethnic or racial group, and 179 the effect of this diversity should be considered in ences may lead to improper diagnosis. However, interactions with the evaluee. The forensic psychia- the presence of the interpreter may alter the assess- trist’s knowledge of different cultures should include ment. The interpreter may have a bias, for example, if verbal and nonverbal communication styles, profes- he is a relative of or is known by the evaluee and is 36 interpreting information that may be embarrassing sional values, and power relationships. Respect for to the family.172 Even a neutral, qualified translator personal space, volume of speech, eye contact, ges- may introduce distortions into the process. Transla- tures, and physical contact should be considered. tion choices may alter some of the content of ques- Distress may manifest in culturally specific ways in tions and responses, with substitutions, omissions, or individuals with different life histories.179 distortions.36,179 Hence, the interpreter should be Religion, culture, and race may affect a psychia- asked to translate verbatim, and the evaluator should trist’s worldview, causing bias (or the appearance of maintain eye contact with the evaluee throughout bias). The cultural background of the evaluee must the interview.179 not affect the objectivity of the forensic examiner. Transference and countertransference may require 10.4.7. Culture and Psychological Testing and Mental Status additional attention in cross-cultural contexts; Examination self-examination of bias regarding ethnicity and Although psychological testing can provide valu- belief systems should be conducted.178 The psy- able insight, care should be taken to ensure that the chiatrist should also be aware that attitudes toward test is interpreted in a culturally meaningful way. mental illness and the stigma that it carries differ Language disparities, cross-cultural meanings, test across groups. In complicated cases, it may be use- environment, and tester biases should be consid- ful to consult colleagues or others in an effort to ered.178 The attitude of the evaluee toward testing is broaden understanding of the defendant’s also important: some evaluees may merely be acqui- background.178,179 escent or may provide socially desirable replies.164

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It is argued that there is no culture-neutral, uni- Expressions of various types of distress, regardless versally acceptable test.164 The influence of culture of whether they meet the criteria for a specific psy- on various tests must be acknowledged. It affects the chiatric disorder, may be affected by culture. Tseng changes in norms, special translations, equivalency and colleagues164 note several cultural concepts of efforts, and modifications.164 Evaluations of the distress, including culture-bound syndromes, idioms MMPI (Minnesota Multiphasic Inventory)180 re- of distress, and cultural explanations of symptoms. vealed cross-ethnic differences among whites, blacks, Idioms of distress (i.e., ways in which sociocultural and Native Americans, whereas a new version groups convey affliction) are particularly relevant to (MMPI-2) shows the “relative unimportance of eth- considerations of religious culture.182,183 As well, in nic group difference” (Ref. 147, p 80). A Chinese test some cultures, including those in China, somatiza- similar to the MMPI has also been developed to ac- tion complaints are used as idioms of distress, unlike count for cultural differences with Americans.164 Western conceptualizations.164 Similarly, Chinese and Vietnamese depression scales 10.4.8. Culture in Specific Types of Assessments have been developed because of somatic and emo- tional experiences of depression in these cultures that Specific forensic assessments with cultural over- are poorly captured by Western scales. There is some tones may be requested of an evaluator, such as dis- crimination torts and parental fitness in transracial concern that the Mini Mental State Examination 184 overclassifies blacks as having dementia, but the evi- adoptions. However, regardless of the type of as- dence of this phenomenon is mixed.179 Tests should sessment, the forensic psychiatrist must be aware of be administered with care in evaluees from cultural cultural manifestations of distress and potential bi- backgrounds for which there are no standardized ases in performing assessments, to make accurate di- data available for interpretation of the results.178 It is agnoses. There is some literature on how to conduct an assessment of a claim of emotional distress due to important to consult test manuals for further 185 information. psychological harm caused by racism. In addition, It has been argued that the Psychopathy Checklist, although there is an emerging body of literature that Revised (PCL-R),120 has limited generalizability examines transracial adoptions, views vary on ap- cross-culturally. The test was originally standardized proaches to performing these assessments and to arriving at an opinion that reflects the best inter- among only Western populations that were almost 184,186 exclusively white in origin; therefore, some suggest ests of the child. Literature is also available on the effect of religious beliefs on capacity evalua- that the PCL-R should be used with caution in non- 187,188 white and non-Western groups, although the man- tions and on distinguishing religious views from psychopathology.189–192 A full discussion of ual of the test addresses the possibility and counters 164 these types of assessments is beyond the scope of this the argument. Because the administration of the Guideline. PCL-R requires semistructured interviews and exam- iner rating, some argue that knowledge of cultural 120 concerns is essential when using the test. Summary 10.4.8 Importance of Culture in Assessment In addition, even parts of the formal mental status ● Diagnosis assessment may require adaptation. Mood and affect ● Identification of relevant cultural factors may be expressed differently across cultures. In par- ● Consideration of evaluee’s distinctiveness ticular, different groups may display different affects ● Avoidance of stereotyping 164 ● Validation of testing in the presence of strangers. An expressed belief ● might be interpreted as a delusion by an evaluator Consideration of the meaning of language ● Respect for and knowledge of cultures who is unfamiliar with religious beliefs in another culture. Similarly, a report of hearing a deceased rel- ative’s voice in a bereaved Latino, Native American, or an Inuk may be a culturally sanctioned expression 10.5. Malingering and Dissimulation of grieving rather than a psychotic symptom. Some The detection of malingered mental illness re- cautious suspiciousness, as distinguished from para- quires a thorough knowledge of the clinical charac- noia, is adaptive among those of some minority eth- teristics of genuine illness and a systematic approach nic groups.172 to the forensic assessment. A conclusion of malinger-

Volume 43, Number 2, 2015 Supplement S41 Practice Guideline: The Forensic Assessment ing is the result of a process of careful analysis, iden- knowledge of the illness they are feigning, or they tification of objective indicators, clinical judgment, overact the part202 in a mistaken belief that the more and use of scientifically validated psychological tests bizarre the behavior, the more convincing it will be when necessary.193 Despite recent advances in neu- (Summary 10.5.2). Such evaluees give a greater num- roscience, there remain significant limitations to the ber of evasive answers and may repeat questions or use of neurotechnology for detecting malingering, answer questions slowly to give themselves time to and its application is not yet recommended outside think about how to deceive the evaluator.201 of research settings.194 Hence, clinical detection of Evaluees who are malingering are more likely to be malingered mental illness remains a fundamental eager to thrust forward their illness, in contrast to skill in forensic psychiatry. those with, for example, genuine schizophrenia, who 203 10.5.1. Malingering are often reluctant to discuss their symptoms. Ma- lingering evaluees may attempt to take control of the Malingering is described in DSM-5 as a condition interview or otherwise behave in an intimidating or that the clinician may encounter that is not attribut- hostile manner in an effort to cause the psychiatrist to able to a mental disorder, consisting of the inten- terminate the interview prematurely. They are un- tional production of false or grossly exaggerated likely to give a successful imitation of the subtle signs physical or psychological symptoms, motivated by 102 of schizophrenia, such as symptoms of deficits (e.g., external incentives. Malingering requires differen- flat affect, alogia, and avolition), impaired related- tiation from factitious disorder, which is also the de- ness, digressive speech, or peculiar thinking. liberate simulation of illness, but for the purpose of seeking to adopt a sick role.195 The motivation to assume a sick role can be thought of as an internal Summary 10.5.2 Clinical Factors Suggestive of Malingering (i.e., psychological) incentive. ● Marked inconsistencies and contradictions Malingering may be further categorized as pure ● Improbable psychiatric symptoms malingering, partial malingering, or false imputa- ● Mixed symptom profile: endorsement of depressive symptoms 196 while mood is euphoric tion. Pure malingering is used to describe feigning ● Overly dramatic behavior a nonexistent disorder. If the individual has actual ● Extremely unusual responses to questions about improbable symptoms, but consciously exaggerates them, it is situations called partial malingering. False imputation refers to ● Evasiveness or noncooperation ● ascribing actual symptoms to a cause that the indi- Excessively guarded or hesitant responses ● Frequent repetition of questions vidual consciously recognizes as having no relation- ● Frequent declaration of ignorance (“I don’t know”) in response to ship to the symptoms. simple questions There is an extensive body of literature about ma- ● Hostile, intimidating behavior, seeking to control or refusing to 197 198 participate in the interview lingered hallucinations, delusions, and cogni- ● tive symptoms.199 A review of this topic is beyond Overemphasis of positive symptoms of schizophrenia the scope of this Guideline, but can be found in the references cited. Motives to malinger fall into two general catego- The detection of malingering also requires special ries: avoiding difficult real-life situations or punish- attention to rare or improbable symptoms that are almost never reported, even in severely disturbed pa- ment (avoiding pain) and obtaining compensation or 204,205 medications (seeking pleasure). In criminal assess- tients. Examiners may ask evaluees suspected ments, evaluees may seek to avoid punishment by of malingering about improbable symptoms to see feigning insanity at the time of the act or incompe- whether they will endorse them. For example, 200 “When people talk to you, do you see the words they tence to stand trial after the act. In civil actions, 205 evaluees may malinger to seek financial gain from speak spelled out?” or “Have you ever believed that automobiles are members of an organized social security disability, veteran’s benefits, workers’ 206 compensation, or damages after alleged accidents.201 religion?” Malingering evaluees may give a false or incom- 10.5.2. Clinical Indicators of Malingering plete history during an assessment, with excessively Evaluees who are malingering may be detected guarded, hesitant, or “I don’t know” responses to clinically when they have inadequate or incomplete even simple questions. The current self-report of

S42 The Journal of the American Academy of Psychiatry and the Law Practice Guideline: The Forensic Assessment symptoms should be compared with descriptions in enough to achieve their objective. The single- the medical, psychiatric, or correctional mental measure approach is also susceptible to changes in health records.193,200 Such evaluees often indicate strategies by evaluees as a result of simple coach- current psychiatric symptoms that are inconsis- ing. Therefore, referral to an expert in this area, tent with their recent level of functioning208 or with whom an effective approach to detecting malin- with other professed symptoms or observed behav- gering can be discussed and implemented, is ior. Inconsistencies or disparities between self- recommended. reported and real-world observations should be Psychological testing for malingering may be spe- carefully investigated. Repeated testing may be cialized, using such tests as the Structured Interview necessary to explain inconsistency over time, since of Reported Symptoms, 2nd edition (SIRS-2),211 or 207 malingering is not a stable trait. can rely on an embedded approach, such as in the 10.5.3. Comprehensive Malingering Assessment MMPI-2. The SIRS-2 relies on endorsement of clinical characteristics rarely found or observed in Because of the complexities involved in conclud- genuine patients. In addition, feigners may endorse ing with reasonable medical certainty that a patient is indiscriminate symptoms, an excessive degree or malingering, a comprehensive malingering assess- magnitude of symptoms, or rare symptom combina- ment may be considered, particularly in difficult 193,207,209,210 tions. The validity of the test is established across the cases. An outline for the comprehensive sexes and ethnic groups. It should be noted, however, assessment of malingering is given in Summary that the text is somewhat cumbersome to administer 10.5.3. and score. The Miller Forensic Assessment of Symp- Any information that will assist in supporting or 212 toms Test (M-FAST), was developed specifically refuting alleged symptoms should be carefully re- as a screening instrument for feigned mental disor- viewed (e.g., prior treatment records, insurance re- ders in forensic settings. It can also be used to detect cords, police reports, and interviews of family and malingering of intellectual disability or cognitive im- social contacts). Interview technique is critical in pairment, as evaluees tend to take a broad-based ap- the detection of malingering. It is important to avoid verbal or nonverbal communication of sus- proach to malingering across the spectrum of disor- picion to the evaluee. Careful attention to the ders. The advantage of this test is its brevity and ease principles of interviewing is essential (see Section of administration and scoring, but it should always 5.4, The Interview). In very difficult cases, inpa- be used in conjunction with other methods of detect- tient assessment should be considered, if possible, ing malingering. as psychotic symptoms are extremely difficult to Two examples of tests with embedded validity scales are the MMPI-2 and the Personality Assess- fabricate and sustain while under constant, inten- 198 sive observation. ment Inventory. The MMPI-2 has multiple valid- ity scales, some of which are particularly useful in The evaluation of malingering or exaggeration of 213 198 symptoms by individuals with mild ID can present detecting feigned mental disorder. Rogers et al. particular challenges (see Section 10.3, Assessments outlined some useful points, as well as numerous of Persons with Intellectual Disability). Psychologi- pitfalls to avoid, in the use of this instrument. The 214 cal testing can be very helpful in the detection of Personality Assessment Inventory (PAI) is also malingering. For example, the Test of Memory Ma- useful in the detection of malingering, although it lingering (TOMM) has demonstrated a high rate of lacks the extensive database of the MMPI-2. Readers detection of malingering in groups of subjects with are directed to a useful meta-analysis that suggests ID.199 very high specificity, but warns about the modest Rogers et al.198 noted that several measures are sensitivity of the PAI, concluding that it should be available for identifying feigned cognitive impair- used along with other measures.215 ment. In selecting a measure, it is important to find The MMPI-2 is also useful in detecting feigned one that uses multiple detection strategies. A measure medical complaints, which may be the subject matter that reveals repeated failures on very simple items is of forensic assessment. This test should generally be insufficient, as malingering evaluees may successfully used in conjunction with a medical examination by mimic mild to moderate impairment, which is an expert specialist.118

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10.5.4. Malingered Posttraumatic Stress Disorder validity scales that may be helpful. Rogers and col- Resnick216 pointed out that malingering should leagues,217 in a comprehensive meta-analysis, con- be considered in all claimants who are seeking dam- cluded that the Fp and D scales are the most useful. ages after personal injury. In his experience, sup- The PAI214 may also be pertinent. Specific trauma ported by research in this area, feigning symptoms of inventories are less helpful, since they are more trans- PTSD is not difficult. Even in naïve subjects pre- parent. Evaluators should use open-ended questions sented with a checklist of symptoms, close to 90 per- to elicit symptoms in the interview before using cent can accurately endorse PTSD symptoms. In the symptom checklists, which may serve to suggest real world, evaluees can easily research the diagnostic symptoms to the evaluee. Resnick and Knoll216 pro- symptoms before an evaluation and in some circum- posed a model that incorporates many of the above- stances may be coached to give the desired answers. noted factors, thereby serving as a useful guide for In addition, in some claims of PTSD the evaluee may experts. The book provides a more comprehensive have symptoms of the disorder but exaggerate them review of testing for malingering. for the purposes of the evaluation, making detection 10.5.5. Clinical Assessment of Malingering in Criminal even more difficult. Nevertheless, the literature re- Defendants veals some particular strategies that the clinician may When evaluating criminal defendants in a forensic include in a comprehensive evaluation, to differenti- setting, the psychiatrist must always consider malin- ate malingerers from genuine claimants. gering.46 In addition to conducting a thorough re- For instance, in an interview, evaluees may give a view and preparing for the assessment of the criminal history of an inability to work, while contemporane- defendant, the psychiatrist should gather informa- ously being able to enjoy recreation.185 They may be tion about the defendant and the crime. Comparing sullen, resentful, uncooperative, suspicious,216 eva- this information with the evaluee’s self-report upon sive, and inconsistent.185 They may have antisocial questioning may be a method of assessing veracity. traits and a poor work record. Attempts should be made to evaluate the defen- Collateral information may be helpful. Significant dant as soon as possible after the crime. Although it is others and close family members may have some- not always possible, early evaluation reduces the like- thing to gain from the claim and may therefore cor- lihood that the evaluee has been coached or has had roborate the evaluee’s account, but other acquain- sufficient time to observe genuine psychosis in a hos- tances, such as coworkers and employers, may be pital setting, plan a deceptive strategy, craft a consis- more frank. Sometimes lawyers will obtain video re- tent story, or rehearse fabrications. As well, normal cordings of evaluees engaging in various activities memory distortions are less likely to occur. that may be inconsistent with their history. When symptoms such as memory loss, dissocia- Psychological testing may be helpful as part of a tion, or depersonalization during an offense are comprehensive evaluation. The MMPI-2 has several claimed, it is important to consider whether the symptoms, if genuine, were precipitated by the of- fense itself. Memory impairment is commonly Summary 10.5.3 Comprehensive Malingering Assessment claimed by those who have committed a violent ● Review psychiatric records. crime and may represent truthful reporting. (In con- ● Review all relevant sources of collateral information. trast, memory in one who commits a homicide may ● Identify plausible external incentives to malinger. be enhanced by the powerful emotion associated ● Conduct forensic psychiatric assessment(s) (may require several with its perpetration.218) sessions and/or extended length). ● Conduct behavioral observations (especially over time and/or on Offenders commonly report dissociation during a inpatient unit). violent crime. The veracity and intensity of the dis- ● Determine specific period for which evaluee may be attempting to sociation must be carefully explored, as research has malinger symptoms (e.g., currently, at time of offense, or both). suggested that such symptoms may not constitute a ● Carefully analyze all clinical indicators of malingering. ● Apply model criteria for the assessment of malingering in mental disease and that dissociation may be a normal defendants (Summary 10.6). response of some offenders to the traumatic events 219 ● Obtain psychological testing if necessary (e.g., MMPI-2, SIRS-2, that they have caused. That is, violent offenders M-FAST, PAI, TOMM). may be traumatized by their own acts and may go on ● Support conclusion of malingering with multiple factual bases. to develop mental disorders as a result of the offense

S44 The Journal of the American Academy of Psychiatry and the Law Practice Guideline: The Forensic Assessment they have committed.220 Thus, such symptoms oc- symptoms has been reported anecdotally in persons cur only after the offense. who have committed crimes.226 A crime without an apparent motive (e.g., the kill- ing of a stranger) may lend credence to the presence 11. Risk Assessment of genuine mental illness. In Canadian law, the Su- preme Court of Canada has addressed the defense of 11.1. Introduction automatism and set forth specific criteria related to Forensic psychiatrists are often asked to perform credibility that should be considered.221 Several clues risk assessments. The most frequent types of assess- can assist the psychiatrist in the detection of fraudu- ment are for risk of violence, inappropriate sexual lent insanity defenses.222 For example, a psychotic behavior, and criminal recidivism. Psychiatric risk explanation for a crime should be questioned if the assessment is a broad and varied topic, and a full crime fits the same pattern as previous criminal con- commentary on all types of risk assessment is outside victions. Evaluees who malinger are likely to have the scope of this Guideline. Detailed descriptions of nonpsychotic, rational, alternative motives for their the process are available in the academic and profes- behavior that flow from the more commonplace hu- sional literature and are referenced in a resource doc- man passions such as revenge, jealousy, greed, and ument on psychiatric violence risk assessment pub- anger. They are also more likely to have a history of lished by the American Psychiatric Association in murder or rape, a diagnosis of antisocial personality 2012.227 disorder or sexual sadism, and greater levels of Risk assessment takes place in a variety of contexts. psychopathy.223 Assessment of risk of future violent or sexual offenses Malingering defendants may present themselves is an important element of sexually violent predator as doubly blameless within the context of their proceedings in the United States and of the equiva- feigned illness. In such cases, the defendant’s version lent dangerous offender criminal sentencing hearings of the offense may demonstrate what is called a dou- in Canada. Risk assessments are also used in other ble denial of responsibility.216 Common examples tribunals in which future dangerousness is a signif- include some type of disavowal of having committed icant factor. These include criminal sentencing the crime, yet a simultaneous attribution of the crime hearings, probation or parole assessments, death to psychosis. Allegations involving double denial penalty aggravation or mitigation, child custody, conform to the following theme: “I am not respon- disposition assessments involving people found in- sible because of reason one, and, if this is not ac- sane or not criminally responsible because of men- cepted, I am also not responsible because of reason tal illness, hospital civil commitment proceedings, two.” Genuine insanity defenses are usually associ- threat assessments, and assessment of potential vi- ated with only one psychotic explanation of why the olent self-harm. defendant did not appreciate the wrongfulness of the It is important to ensure that all parties under- act, not with dual explanations. Thus, the presence of stand the type of risk that is being appraised, the dual explanations should prompt the psychiatrist to methods used, and limitations of the assessment. consider the possibility that the defendant has sup- Clarifying the question is often an important prelim- plemented his claims of mental illness at the time of inary step in conducting an assessment. Risk assess- the offense. ments usually include appraisal of what could hap- pen, under what circumstances, and over how long a 10.5.6. Dissimulation time. Offering an opinion about management inter- Dissimulation is the concealment of genuine ventions and whether they may change risk is often symptoms of mental illness in an effort to portray part of the task. psychological health.224 Forensic psychiatrists are trained to detect malingering, but they must be 11.2. Ethics equally vigilant for the possibility that a defendant In risk assessment, a psychiatric opinion can affect will attempt to conceal genuine illness. There is a the evaluee’s interests. Courts sometimes increase the paucity of research concerning defendants who seek length of a prison sentence, for instance, in response to suppress signs of mental illness, or otherwise sim- to the content of a forensic report.32 Ethics guide- ulate sanity.225 However, the denial of psychiatric lines do not preclude evaluations that may contrib-

Volume 43, Number 2, 2015 Supplement S45 Practice Guideline: The Forensic Assessment ute to an outcome, such as a longer sentence, that structured assessment tools in risk assessment has in- the evaluee would regard as unfavorable, provided creased in recent years, and their predictive validity the purpose of the evaluation has been explained has now been demonstrated in a range of settings. to the evaluee in advance.228,229 Broadly speak- These tools can act as an aide-me´moire for the evalu- ing, two justifications have been offered for mental ator. The factors that affect risk in an individual case health professionals’ provision of risk assessments in cannot always be captured by an instrument, how- these circumstances. The first is that psychiatrists ever, and the clinical and forensic roles of these tech- and psychologists, when they are working for attor- niques remain a subject of debate.230 neys and courts, are serving not as clinicians but as Conclusions regarding the likelihood of risk are evaluators, guided by an alternative ethic based on usually best expressed in probabilistic terms that respecting others, truthfulness, and justice23,26,31 make clear the level of confidence with which the (see also Section 4, Ethics Foundation). The second opinion is held.231,232 They should take into account is that mental health professionals have a duty, not factors that reduce the risk and those that increase only to their patients but also to the medical profes- it.232–234 Depending on the question asked, they sion and to society as a whole, as exemplified by should also include some discussion of how the case assisting in the administration of justice.229 These can best be managed. duties have to be balanced according to the circum- Conclusions should be informed by empirical re- stances of the case. Depending on the nature of this search on the correlates of violence, but also by the balance, it may be ethical to conduct a medical eval- skills that psychiatrists learn in training and develop uation with an outcome that the evaluee regards as in their clinical practice. The validity of a psychiatric contrary to his interests. It would be prudent to con- report is greatest when those skills can be applied. sult the AAPL Ethics Guidelines for forensic psychi- When they cannot, for instance, because the subject atric practices that apply to risk assessments in legal will not be in treatment during the period of risk or settings.39 does not have a condition that psychiatrists are ac- customed to managing, the conclusion should be 11.3. Conducting the Evaluation and Writing qualified accordingly.235 the Report One of the most important elements of the back- 11.4. Risk Assessment for Sexual Offenses ground information is the evaluee’s past behavior. In Sexually violent predator statutes require specialist general, the more independent the sources of in- evaluations that address the risk of sexual offense. For formation about past behavior, the better. It is risk assessments concerning sexual reoffense, empha- important to inform all the potential providers of sis should be placed on paraphilic acts and interests. information about the limits to confidentiality, The evaluee should be questioned about the nature especially when the evaluee is also providing infor- and frequency of this behavior. In particular, evi- mation. The principles summarized in Section dence of escalation or de-escalation should be 5.2, Confidentiality, are designed to ensure that sought. The evaluator should question the evaluee the evaluee understands the principles and limits about fantasies and impulses in the sexual domain. of confidentiality in the forensic assessment. Par- Careful inquiry about the evaluee’s thoughts, feel- ticular care should be taken to be clear about the ings, and intent at the time of the alleged acts is limits of confidentiality when the evaluator is re- important. Questions about the evaluee’s attitude to- tained by the prosecution. ward what he has allegedly done should also be part As with other types of forensic psychiatric evalua- of the assessment. tion, examiners should strive for objectivity in risk Defensiveness, denial, and minimization are com- assessments. The assessment should be as complete as mon in sex offenders.236 Sometimes, multiple inter- possible under the circumstances. It should include views are necessary to make a full evaluation of the an interview; however, if permission is not given for offender. Concern about being labeled a sex offender a personal interview, the refusal and the reason for it should be acknowledged, especially for first-time sex should be mentioned in the report. The limitations offenders and for those who expect to face lengthy that the lack of a personal interview imposes on the sentences. In the assessment of risk for sexual recidi- final conclusions should also be noted. The use of vism, a thorough sexual history should be taken. In

S46 The Journal of the American Academy of Psychiatry and the Law Practice Guideline: The Forensic Assessment particular, it is helpful to learn about early sexual 12. Conclusion experiences, especially whether the evaluee was sexu- This Guideline has set the groundwork for foren- ally abused as a child. sic assessments, which form the basis for reports and Early sexual behavior may be the forme fruste of a court testimony. The background and approaches paraphilia. A sexual history should include an assess- provided here are intended to contribute to training ment of gender identity, sexual orientation, and sex- new forensic psychiatrists, assist experienced forensic ual dysfunctions. A history of known sexually trans- experts in improving their skills and handling com- mitted infections and treatment should also be plex situations, provide a menu of considerations obtained. Questions about impulsivity, judgment, when undertaking an assessment, and identify gaps and antisocial behavior before the age of 15 are sig- in knowledge for further research. nificant. In addition, it is helpful to try to elicit in- Forensic psychiatrists have a unique role. They formation regarding attitudes toward women and to- must step outside of the usual parameters of the con- ward engaging in sex acts with children, as well as 124 fidential physician–patient relationship in a variety evidence of sexual entitlement and preoccupation. of ways, providing information about the evaluee to A history of the evaluee’s ability to form and main- lawyers or courts, maintaining a neutral attitude to- tain relationships is also important, especially if it can ward the evaluee interview, investigating the eval- be independently verified. Similarly, ascertaining the uee’s account through other interviews and reports, evaluee’s ability to follow through on commitments recording interviews, and referring the evaluee to such as education and career helps to complete the colleagues for needed treatment to avoid conflict picture. These factors are also pertinent when evalu- of interest. The expert thus must tread a fine line ating the presence or absence of antisocial personality between the referring agent and the evaluee, seek- disorder or psychopathy. ing to answer the psycholegal question as objec- Assessment of substance use is particularly relevant tively as possible. because of its relationship to sexual offenses. It in- Preparing this Guideline has also involved finding cludes careful interviewing of the evaluee and provid- balances between the weight of evidence and the ers of collateral information and the use of screening wealth of experience that the authors, informed by 237 tools. Formal mental status examination and members of AAPL, have brought to it; between pro- functional inquiry about psychiatric symptoms are viding prescriptive advice and fostering experts’ important for determining whether the sexual be- judgment based on their training and experience; havior is linked to mental illness, a significant fac- and between best practices (empirically or experien- tor in risk assessment and management.238 Ad- tially determined) and the need to cope with practical junctive testing is generally considered important and logistical constraints. The approach offered in these assessments. Psychometric testing, usually herein is intended to support forensic psychiatrists in collaboration with a psychologist, is often ad- with information and guidance, while empowering visable as well. them to develop analytical capabilities to make deci- Tests of endocrine function, which may include sions on a case-by-case basis. tests for diabetes and thyroid disease and specific lev- This document is therefore a roadmap through els of sex hormones, are sometimes indicated.239 the process, content, and considerations relevant to Neuropsychological testing by a psychologist, elec- civil and criminal cases. Because of differences troencephalography, and imaging studies can iden- among jurisdictions and in practice, certain proto- tify a variety of brain diseases that may have prognos- cols are not clear cut. Differing conceptions of the tic implications. Self-report measures of sexual purpose of the assessment, the expert’s role, stan- behavior and attitudes provide another window into dards, and ethics-related requirements can lead to the mind of the evaluee.240 Other investigations in- honest but varying approaches to the task. Where clude sexual preference testing by PPG and VRT (see there are wider discrepancies in practice, the Guide- Section 8.6, Penile Plethysmography and Visual Re- line provides options with advantages and disadvan- action Time Screening). Regardless of the approach, tages, or remains deliberately open-ended in its con- experts should be familiar with the psychometric clusions. Such areas are excellent topics for further properties of the technique. research; as well, the experience of the community of

Volume 43, Number 2, 2015 Supplement S47 Practice Guideline: The Forensic Assessment experts can lead to further shared knowledge of best 14. Boccaccini MT, Brodsky SL: Diagnostic test usage by forensic psychologists in emotional injury cases. Prof Psychol 30:253–9, practices and alternative approaches. 1999 This document does not cover report-writing or tes- 15. Large MM, Nielssen O: Factors associated with agreement be- tifying. Many of the subjects given brief treatment here tween experts in evidence about psychiatric injury. J Am Acad Psychiatry Law 36:515–21, 2008 are covered in more depth in published texts and jour- 16. Heilbrun K, Marczyk GR, DeMatteo D, et al: Principles of nal articles. Some areas, such as developmental disabil- forensic mental health assessment: implications for neuropsy- ity and cultural competence in forensic psychiatric con- chological assessment in forensic contexts. 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