Psychiatric Forensic Interview

Background

A psychiatric forensic interview can include a number of different evaluations. ^[1] The interview may be part of expert witness testimony in a criminal or civil trial, or it may be an independent medical evaluation for an insurance company, employer, or disability provider. In each case, the entity requesting the evaluation is seeking the expertise of psychiatrist to clarify medical issues as they relate to legal issues. ^{[2, 3]}

Forensic evaluations fundamentally differ from routine provision of clinical care, despite significant overlap in how they are performed. The opinion generated by the interview could be helpful, harmful, or neutral to the person being evaluated. These points distinguish a clinical psychiatric interview from a forensic evaluation because of the practical and ethical implications. The relationship is not doctor-patient, but rather evaluator-evaluee. ^[4] As such, the medical principal of primum non nocere is not applicable.

The evaluator-evaluee context is a departure from the typical physician-patient relationship. The evaluee should demonstrate a clear understanding of this distinction, especially as it relates to privacy and consequences of examiner findings.

The interview may include the use of standardized instruments that are more sensitive to malingering, given the higher degree of scrutiny due to secondary gain in a forensic setting. The use and interpretation of these instruments should be approached with caution by practitioners without formalized training.

Evaluation of collateral documents and information collected through collateral interview can also help to identify consistency or inconsistency with evaluee reports and with the expected course of illness. Because of the wide variation in clinical questions addressed by forensic interviews, questions that are beyond a typical clinical scope should be clarified with the retaining attorney. Assuming the referring question is appropriate, the question should be addressed in a written report if one is requested.

Indications

The need for a forensic evaluation is generally prompted by the need for an objective opinion regarding the presence, severity, or treatment of a mental illness. They may be used in criminal or civil court, by employers, or by insurance companies to determine the following:

• Competency to stand trial ^[5]

• Not guilty by reason of insanity

• Mitigation

• Personal injury

• Parental fitness or custody

• Guardianship ^[6]

• Competency to enter into a contract

• Testamentary capacity

• Fitness for duty

• Risk assessment

• Disability

Even within these diverse categories, there is additional variation based on the party requesting evaluation. For example, different jurisdictions have different criteria to define “not guilty by reason of insanity.” Similarly, different insurance policies have variations in their construction to determine when an evaluee receives payment.

Because of this diversity of purposes and standards, it is imperative to have as exact a standard as possible before agreeing to provide an evaluation. Clarification with the retaining party, prior to agreeing to serve in an expert capacity, ensures sufficient information to form an opinion.

Contraindications

The primary relative contraindication for a forensic evaluation is an existing treatment relationship with the evaluee. This contraindication is not absolute, but it is important to be clear to all parties involved that a treatment relationship precludes an ideal degree of objectivity. A doctor-patient relationship generally assumes that the physician is an advocate for the patient rather than an impartial evaluator. Furthermore, the desire to maintain a working treatment relationship may impact findings. Finally, the patient enters into the treatment relationship with expectations about privacy and the nature of the relationship.

For example, a patient who has engaged in psychotherapy for an extended period with a provider may reveal information that he or she would elect not to provide to a neutral evaluator. This patient may have done so with the expectation that the information would be used to provide effective care rather than provide information for a legal proceeding.

Additionally, providers should consider their own expertise with regard the referring question. For example, assessing the risk for sexual violence recidivism may be outside the scope of a typical practitioner.

Technical Considerations

Best Practices

It is customary best practice that the evaluator be retained by a referring attorney, not the evaluee directly. This avoids similarities to a treatment relationship and ensures that the evaluee has an opportunity to consult with an attorney before engaging in a forensic evaluation. This consultation should include clarification of the referring question, ideally including the exact language from a statue or contract related to the forensic question.

Procedure Planning

Prior to accepting a request for a forensic evaluation, it is necessary to obtain adequate clarification of the reason for consultation. If possible, obtain a copy of the written legal standard, with clarifications about the legal interpretation of the terms. This type of clarification can also help to identify questions that are not specific enough to give an opinion or questions that are beyond the scope of a forensic evaluation.

Outcomes

Forensic evaluations frequently have an effect on the legal outcome of the case in question. This outcome may be favorable or unfavorable to the evaluee; therefore, thorough informed consent (or at least notification) is recommended. Details about the informed consent procedure are provided in Periprocedural Care.

Patient Education & Consent

Patient Instructions

Prior to the interview, the evaluee will ideally have an opportunity to discuss the evaluation with their legal counsel. Unlike a typical medical procedure, the implications for a forensic interview are more directly related to potential consequences of legal proceedings. As such, the evaluee should discuss these consequences with his or her lawyer before the evaluation begins.

Elements of Informed Consent

At the outset of the interview itself, obtain verbal consent for the interview and consider obtaining written consent. While obtaining consent, the following issues should be reviewed:

• Verbal interview

• Psychological testing where relevant

• Review of records

• Interview with collateral sources (eg, family, employer, doctors)

• Mandatory reporting of abuse to children or the elderly ^[7]

• Reporting related to Tarasoff duties to warn potential victims ^[8]

• Reporting of issues compromising institutional security (eg, planning a prison riot) ^[9]

These elements are similar to other medical interviews. Several additional areas are different enough to merit further discussion. First, the evaluee should understand that although the evaluator is a physician, this is not a doctor-patient relationship and the evaluator is not acting as the evaluee’s physician.

The second issue is the list of recipients of the interview report. If the interview is requested by the defense, an unhelpful report may not be available to opposing counsel. In other circumstances, the report may be available to both parties and the judge, and portions of the findings may be discussed in open court where members of the public or media could be present. Finally, the possible impacts of the interview on the case should be reviewed. These consequences extend from disclosure.

In some circumstances, such as some court-ordered evaluations, the evaluee does not have the option of refusing to participate. When the participant cannot refuse, an informed consent process is not possible. In this circumstance, it is still important to review the information above as a notification rather than consent. Some evaluees in criminal cases have a constitutionally protected right to discuss the evaluation with a lawyer. ^[10]

Standardized Instruments

The use of standardized interviews and testing has become increasingly common in forensic evaluation. Standardized interviews are typically specific to a type of evaluation, such as competency to stand trial. Similarly, testing is usually specific to certain constructs, such as memory or malingering. A full discussion of these interviews and tests is beyond the scope of this article; however, some general principles about their use should be considered. ^[11]

In determining the need to use a standardized instrument, the strengths and weaknesses of the instrument should be considered carefully. For example, if it is a test that is typically part of a standard clinical outpatient evaluation, it should be determined if there is research on how that instrument handles malingering. Many typical clinical assessment instruments assume cooperation and participation on behalf of the evaluee. They may not be appropriate for a forensic context in which feigning symptoms for secondary gain is a frequent concern.

There are a number of instruments specifically designed for use in a forensic context. ^[12] These instruments are typically far more robust at separating malingering from a genuine report of symptoms. A potential disadvantage to instruments specific to forensic assessment is that they may not have been validated in as many populations as a clinical instrument because of their narrow focus. For example, some instruments may have only been evaluated in adults, so their results should be interpreted cautiously outside of that context.

Approach Considerations

Safety concerns are not unique to forensic psychiatric evaluation, and forensic evaluations may not entail any higher risk than typical psychiatry practice. ^[13] Evaluations related to criminal charges are more likely to take place in a setting that the evaluator has little control over, such as in a jail.

Do not agree to perform an evaluation in an isolated setting, or where safety and security are compromised should you need help.

Interview

The primary elements of a forensic psychiatric interview are also part of a clinical psychiatric interview. ^[14] However, some areas of the forensic interview require more time and attention than they would in a usual clinical examination. Social history should include additional focus on the evaluee's legal history. ^[15]

Information such as age at first arrest, a timeline of charges and penalties, and accounts of the events related to charges is likely to be relevant in the context of criminal charges or allegations of violence.

An account of participation in gang activity and a history of weapon ownership and use may also be important. In a civil legal context, a history of prior lawsuits, personal injury cases, workers’ compensation, or actions against employers may also be relevant.

The issue prompting forensic evaluation will also inform some topics of the interview. For example, if the reason for the examination is to determine the evaluee's competency to stand trial, additional specific questions related to the courtroom and courtroom procedure are necessary. This portion of the interview is highly specific to the reason for evaluation and part of the need for clarifying the specific criteria to be addressed by a forensic report.

All areas of the forensic interview can benefit from allowing the evaluee to give a full and uninterrupted account before seeking additional detail or clarification. This technique allows for minimal introduction of bias, as questions can draw attention to which details the forensic examiner considers most relevant.

Collateral Documents

Review of collateral documents is a common part of both clinical and forensic psychiatric evaluation. In a forensic context, collateral documents can provide important historical data and serve as a possible confirmation of psychiatric issues noted elsewhere. These types of records can help to differentiate relatively static personality factors, such as impulsivity or aggression, from the primary Axis I diagnosis.

An evaluee's medical record helps to verify or establish a history of chronic mental illness. The record can also document common manifestations of an intermittent illness, such as the patient's typical manifestation of manic, psychotic, or depressive symptoms. This documentation can serve to support or refute a behavioral change attributed to mental illness. A recent physical examination and relevant laboratory testing is also helpful in assessing potential Axis III contributions to behavior change.

For many questions, particularly those involving a criminal court procedure, the legal record provides information relevant to the referring question. Although not all criminal behavior results in arrest or conviction, the record may be relevant in establishing patterns of behavior.

Other issues frequently illuminated by this review are the behavior of the evaluee at the time of interaction with law enforcement, and the evaluee's prior exposure to the court system. Behavior at the time of arrest may be relevant to the legal issue of sanity, particularly if the arrest is much nearer to the time of the alleged offense than the forensic interview. Prior exposure to the court system can be relevant to issues of legal competency.

Depending on the referring question, other documents such as school, financial, phone, or employment records may also be relevant. If the relevant information has not been offered by the retaining attorney, request items as necessary to form an opinion. If that information cannot be provided prior to the report’s due date, consider noting items that were requested but unavailable in the forensic report.

Collateral Interviews

Collateral interviews offer additional perspective on the history given by an evaluee and other records. As with any other type of collateral information, consider the potential bias of the source. Family members may have a bias toward or against the evaluee, depending on their relationships with the evaluee or attitudes toward mental illness.

Forensic Reports

If requested, the expert’s opinion can take the form of a written report. This may be in place of, or in addition to, a deposition or courtroom testimony.

A written report often begins with information about the referring question and a list of sources of information used in compiling the report. Relevant excepts from some of these sources of information may also be useful. If other requested sources of information cannot be provided prior to report’s due date, consider noting those items as “requested but unavailable for review.” The report should also include an account of the forensic interview, collateral interviews conducted, and the results of standardized interviews or testing.

The expert opinion should be separated and identified as such. This opinion should include diagnoses rendered, as well as diagnoses considered but not found to be present (ie, malingering). The supporting information used to arrive at that diagnosis benefits from clear attribution regarding the source. This may include direct quotations from the sources previously listed.