Treater, Disability Assessor, or Forensic Expert: A Trap in Disability Claims

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For the Committee on Work and Organizations, From the Group for the Advancement of Psychiatry

Imagine: Your patient has complained about a disagreement with his boss, who he thinks is criticizing him unfairly. You have prescribed an antidepressant and have been helping the patient communicate better with the boss, but the hostility between the two has escalated, and the boss terminated him. At his request, you supported his application for Social Security Disability Insurance (SSDI).

His application was denied, and he is suing SSDI for the denial and his former employer for discrimination based on the Americans With Disabilities Act (ADA). He wants you to provide a forensic expert psychiatric opinion that he is disabled, and that the denial of benefits has psychologically damaged him permanently. You feel caught in a bind, and you are. By stepping out of the treater role, either into the role of disability evaluator or forensic expert, you assume risks inherent in this role combination.

This article highlights some of these major risks. The take-home point is that treaters should avoid role duality if at all possible, preserving the role as treater and referring disability and forensic evaluations to a colleague trained in this area. The following principles apply to psychiatrists who are asked either to support a patient’s disability application or offer forensic expert opinions if litigation ultimately ensues because disability is denied.

Advocacy role

The treater is an advocate for the patient’s mental health. The treater absorbs what the patient says without question and makes treatment decisions accordingly, viewing suspected distortions or exaggerations only as part of a complicated clinical picture. If the treater suspects malingering, treatment is terminated.

In the role of disability assessor or forensic consultant/expert, the psychiatrist is not an advocate for the litigant, instead he or she strives for honesty and impartiality in the assessment. Especially as expert, any signs of advocacy for the litigant leaves the expert open to a challenge of bias from the opposing side and may result in the expert’s being discredited by the fact-finder.

A possible exception exists in the case of a patient with acute and unambiguous impairment and debilitation (eg, florid psychosis, delirium, mania, profound neuro-vegetative depression) in which an appropriately qualified forensic expert cannot be obtained, the treater has not conducted the disability functional assessment, and the patient has been denied disability benefits. Since the psychiatric conditions listed create functional impairment and therefore are generally considered to be disabling, at least temporarily, the treater may be obliged to render an expert opinion in court.

Confidentiality

Ethics require that information divulged in treatment sessions remains confidential. If the treater has also agreed to be the patient’s disability assessor or forensic expert, an ethical bind results, particularly in the latter role. In practicing within ethical guidelines the disability examiner or expert advises the litigant that there is no treatment relationship and no confidentiality exists in the interview. Anything discussed in the interview might appear in the report, which will be shared with either the disability insurance company and employer (if a disability exam) or the attorneys involved in the litigation process. In embracing dual roles, the treater who has breached patient confidentiality in order to provide a complete and honest opinion risks not only the patient’s angry termination of treatment but also an ethics complaint or even a retaliatory malpractice lawsuit.

Medical record

If the treater should become incapacitated, die, retire, or take an extended leave of absence, the replacement treater should be able to garner the important treatment issues from the record. If the treater is also the disability assessor or forensic expert and the patient shares crucial information that could harm the disability claim or legal case, the treater faces another bind. Documenting this may be the ethical choice but risks termination and/or retaliation by an angry patient if the disability or legal case suffers accordingly, not to mention worsening of the patient’s mental health. This bind can lead the treater to sanitize the record, thereby including only medications and benign information and omitting any potentially damaging therapeutic revelations. An independent disability assessor or forensic expert does not have this bind since no treatment relationship exists.

Diagnosis, causality, and malingering

The treater focuses on helping the patient rather than formulating opinions on diagnosis and causality of symptoms. Many treaters conduct a limited mental status examination, if any, and instead focus on current symptoms.

The disability examiner needs to conduct a comprehensive evaluation and functional assessment so that an independent opinion on disability can be rendered. The forensic examiner must defend opinions on both diagnosis and causality of the diagnosis in deposition or at trial, since valid legal claims of emotional injury are translated into psychiatric diagnoses caused by the disputed circumstances.

The disability examiner should review collateral information, especially work records, but additionally must understand the mental functions required by the job and explain how any psychiatric diagnoses impair the person’s ability to carry out the job tasks. Psychological testing may be useful.

The expert must also defend the diagnostic opinions by reviewing multiple cross-sectional sources of information including mental health, medical, employment, legal, and other pertinent records. Objective psychological testing is important in order to check for consistency with the diagnostic hypotheses. In either role, a complete mental status examination is essential.

In addition to the psychiatric diagnoses, the disability examiner must discuss any collateral factors that may underlie the request for disability, such as family problems and severe financial problems, as with the IRS and creditors. Some diagnoses, such as PTSD, are easily malingered by review of symptoms posted online. Treaters involved with the Veteran’s Administration clinics and hospitals in which PTSD checklists are administered routinely face a unique responsibility to minimize inappropriate use of the system by these patients.

Limited inquiry

Although treaters may initially obtain information about the patient’s medical, mental health, developmental, and family histories, rarely does inquiry go beyond these areas-often because of time limitations. Follow-up sessions are usually brief checks that inquire about response to medications and adverse effects without discussion of other issues such as current life circumstances and collateral stresses.

By contrast, the disability or forensic examiner usually has a single interview in which to gather sufficient information to formulate opinions regarding diagnosis and causality. This usually results in a lengthy inquiry into historical and present circumstances without any follow up. The disability exam involves a functional assessment, which may not be required in a forensic evaluation.

Financial

The treater makes arrangements with the patient for the payment of services. Disability examiners contract with insurance companies or independent third parties to conduct the exam; the particulars and payment are decided at that time, and the fee may be different than that charged for treatment.

Forensic examiners usually contract with the retaining attorney regarding payment for time and expenses to conduct the examination. Usually forensic consultation is more costly than treatment. If treaters also assume the forensic role and charge more accordingly, questions arise such as who is responsible for payment of services. Usually it is the litigant’s attorney, but if the psychiatrist is also providing treatment, attorneys may ask that the evaluation be charged to the patient’s medical insurance provider. This creates another ethical problem: what portion of services should be described as treatment and what is the risk to the treater for an ethical complaint because of disparate charges for treatment versus expert work?

Conclusions

The treater who also assumes the dual role as either a disability examiner or forensic consulting expert faces ethical risks because of the inherent binds in the dual role, including advocacy, confidentiality, integrity of the medical record, diagnosis, causality, limited inquiry, and financial reimbursement. Dual roles leave the treater opining on the patient’s disability claim open to question by the disability insurer, who may then request an independent assessment.

If the treater is also the forensic expert, he or she will be open to attack by opposing attorney at deposition and trial, and the treater/examiner’s credibility, impartiality, and motives for functioning in this dual role may be questioned and memorialized in the public legal record. Worse, if the treater/forensic expert testifies at trial while the patient watches a withering cross-examination by opposing counsel, the patient’s legal case may be compromised and lost. How will the patient/litigant respond to the treater’s loss of credibility? Will the patient terminate treatment and retaliate legally against the treater?

These are some of the important reasons why, barring certain exceptions, treaters who are asked by their patients to function as a disability assessor or forensic expert should strongly consider declining and remaining in the treatment role alone, referring the patient to an appropriately trained colleague. If asked to testify for the patient, the treater may testify as a fact, but not an expert witness. A possible exception exists when a patient who exhibits signs of acute and unambiguous impairment and debilitation has been denied disability benefits, and a qualified disability examiner or forensic expert cannot be obtained. Such conditions may temporarily require the treater’s assuming a dual role, but the treater should document the reasons for role duality and the limitations this imposes on the treatment process of treatment and disability or forensic assessment, clearly explaining these limitations to the patient, insurer, and the courts.

Disclosures:

Dr Long is Committee Chair, Work and Disability Consultant Private Industry, the Courts, and the Legal Profession; Dr Brown is Department Psychiatrist, Boston Police Department, Consulting Psychiatrist, Boston Fire Department, Work and Disability Consultant, Private Industry and Government; Dr Sassano-Higgins is Adjunct Professor, Department of Psychiatry, University of Southern California; Dr Morrison is Clinical Assistant Professor of Psychiatry and Behavioral Sciences, Chicago Medical School.