Hi, benfranklin!
I have to say this was one of the most difficult searches I have done
to date!
You have asked whether it is ever ethical or appropriate to make
psychological or psychiatric evaluations of a person's mental state
based on information that does not include direct examination by the
psychologist or psychiatrist.
With very few exceptions, almost every reference I examined involved
a direct examination of the client. However, there are thousands of
court cases in existence, many of which "could" show evidence of a
mental health diagnosis without direct examination of the subject.
There are also an overwhelming number of journal articles that "could"
contain snippets of information relating to instances when such a
diagnosis was made. Finding such cases without a number of parameters
to narrow them down has turned out to be an overwhelming task.
I have, at the very least, established that forming an opinion on a
mental diagnosis without direct examination does occur and does not
appear to directly violate any ethical codes.
Such a diagnosis is certainly not considered to be the most desirable
method, but I have found nothing in the research that prohibits it.
In many legal circles the practice is likely frowned upon but a smart
lawyer can apparently find circumstances, it seems, to establish the
necessity of obtaining a psychological opinion without direct
examination.
==
According to the American Academy of Psychiatry and the Law, there
are instances when a forensic psychologist may need to make diagnostic
evaluations without direct examination. These specific types of
situations, however, are not outlined!
From "American Academy of Psychiatry and the Law - Ethical Guidelines
for the Practice of Forensic Psychiatry." Adopted May, 1987 - Revised
October, 1989
http://www.forensic-psych.com/articles/artEthics.html
IV. HONESTY AND STRIVING FOR OBJECTIVITY
(Excerpt)
"Honesty, objectivity and the adequacy of the clinical evaluation may
be called into question when an expert opinion is offered without
personal evaluation. While there are authorities who would bar an
expert opinion in regard to an individual who has not been personally
examined, it is the position of the Academy that if, after earnest
effort, it is not possible to conduct a personal examination, an
opinion may be rendered on the basis of other information. However,
under such circumstances, it is the responsibility of the forensic
psychiatrist to assure that the statement of his opinion and any
reports or testimony based on this opinion clearly indicate that there
was no personal examination and that the opinion expressed is thereby
limited."
"In custody cases, honesty and striving for objectivity require that
all parties be interviewed, if possible, before an opinion is
rendered. When this is not possible, or, if for any reason not done,
this fact should be clearly indicated in the forensic psychiatrist's
report or testimony. Where one parent has not been seen, even after
deliberate effort, it may be inappropriate to comment on that parent's
fitness as a parent. Any comment on that parent's fitness as a parent
should be qualified and the data for the opinion should be clearly
indicated."
==
Another article highlighting the necessity of having the correct
licensure to offer forensic assistance in another state makes
reference to the practice of rendering an opinion rendered without
direct examination.
From "Conducting Forensic Examinations on the Road: Are You Practicing
Your Profession Without a License? by Robert I. Simon, MD, and Daniel
W. Shuman, JD. J Am Acad Psychiatry Law 27(1): 75-82, 1999
http://www.emory.edu/AAPL/fulltext/j271-75.simon_out-of-state.htm
Consultations, Record Reviews, Depositions, and Trials:
=======================================================
(an excerpt)
*****
"The review of medical, psychological, and other health care records
*to arrive at psychiatric or psychological conclusions, including
diagnoses,*
for out-of-state depositions or trials by a psychiatrist or
psychologist licensed only in another jurisdiction is less clear.
*****
========
The Ethics Code for the American Psychological Association, updated
in 2003, makes no specific mention of an ethical violation regarding
diagnosing a subject without a direct examination. In ideal
circumstances, the individual should be personally examined. However,
it is made clear that there are situations when direct examination is
not practical.
Again, as with the American Academy of Psychiatry and the Law and the
ethics of forensic psychiatry, specific circumstances are not
defined!!
From "ETHICAL PRINCIPLES OF PSYCHOLOGISTS AND CODE OF CONDUCT."
Effective date June 1, 2003. http://www.apa.org/ethics/code2002.html
9. Assessment
9.01 Bases for Assessments:
(a) Psychologists base the opinions contained in their
recommendations, reports, and diagnostic or evaluative statements,
including forensic testimony, on information and techniques sufficient
to substantiate their findings. (See also Standard 2.04, Bases for
Scientific and Professional Judgments.)
(b) Except as noted in 9.01c, psychologists provide opinions of the
psychological characteristics of individuals only after they have
conducted an examination of the individuals adequate to support their
statements or conclusions.
****
When, despite reasonable efforts, such an examination is not
practical, psychologists document the efforts they made and the result
of those efforts, clarify the probable impact of their limited
information on the reliability and validity of their opinions, and
appropriately limit the nature and extent of their conclusions or
recommendations. (See also Standards 2.01, Boundaries of Competence,
and 9.06, Interpreting Assessment Results.)
****
(c) When psychologists conduct a record review or provide consultation
or supervision and an individual examination is not warranted or
necessary for the opinion, psychologists explain this and the sources
of information on which they based their conclusions and
recommendations.
====
The following article offers one individual's negative view of such
testimony. However, the attempt to show these types of opinions as
violations of the APA Ethics Code is not very convincing. (This
article is also based on the wording of the old code, which was
updated in 2003)
Read "Psychologists Who Make Unqualified Public Statements About
Litigants Whom They Have Not Examined", by Jack S. Annon. Institute
for Psychological Therapies. Vol. 8 (1996)
http://www.ipt-forensics.com/journal/volume8/j8_3_5.htm
===
The following is an example of a psychological opinion based on the
written records of another's evaluation.
Transcripts of Documents from the Unabomber Trial
=================================================
DECLARATION OF XAVIER F. AMADOR, Ph.D
Nov. 16, 1997 (Court transcripts and documents provided by: Attorney's
Diversified Services)
http://www.unabombertrial.com/documents/amador111697.html
Mr. Amador provides lengthy written testimony about Ted Kaczynski,
** even though he did not directly examine him.**
Although Kaczynski would not allow a government psychological
evaluation, he did agree to examination by defense mental health
experts.
Mr. Amador made the following evaluation based on the documented
observation of another doctor's examination combined with his own
experience working with schizophrenic patients.:
A short excerpt follows:
"Counsel for Theodore J. Kaczynski have requested that I convey to the
court the information I have provided them about schizophrenia as well
as the relevant research on unawareness of illness as this information
relates to Mr. Kaczynski's inability to submit to an examination by
government psychiatrists. They have also asked that I convey to the
court my opinion on the nature, presence and severity of the mental
disorder suffered by Mr. Kaczynski as it explains the reason he has
refused the government's mental examination while allowing himself to
be evaluated by defense mental health experts. I have formulated an
opinion on these matters based on documents including numerous
excerpts of Mr. Kaczynski's writings, the declaration of Dr. David
Foster, the government pleading and exhibits filed 11/14/97 and the
unredacted version of the exhibits filed with the government pleading,
all of which were provided to me by his counsel over the last 72
hours."
...............
In summary, reluctance to submit to psychiatric evaluations and
treatment are a hallmark of schizophrenia. Mr. Kaczynski's willingness
to seek help with his insomnia and social deficits has no bearing on
his capacity to submit to a psychiatric evaluation. It is like
comparing apples to oranges.
The foregoing is true and correct and executed under penalty of
perjury under the laws of the United States of America on this 16th
day of November, 1997.
XAVIER F. AMADOR, Ph.D
(signature)
=====
The following article also contains some less than convincing
arguments. While suggesting that psychologists avoid rendering
opinions without direct examination, the point is then established
that psychologists cannot always obtain direct evaluations and should
therefore make extra effort to document the reasoning behind their
opinion!
From "10 ways practitioners can avoid frequent ethical pitfalls", by
Deborah Smith. Monitor on Psychology. Volume 34, No. 1 January 2003
http://www.apa.org/monitor/jan03/10ways.html?CFID=2108803&CFTOKEN=89525520
Ethics experts recommend that psychologists:
* Don't rely on third-party reports to formulate assessments and avoid
giving an opinion of any person they haven't directly evaluated.
According to the Ethics Code, when psychologists can't evaluate a
person directly, they should document the efforts they made and the
result of those efforts. They also need to discuss the limited
information's impact on the accuracy and certainty of their opinion,
and appropriately limit their conclusions or recommendations."
* Make sure the assessment is thorough. Psychologists can find
themselves in hot water when they give an expert opinion without
consulting all of the sources available. For example, a psychologist
conducting a custody evaluation fails to check with child protection
services and therefore does not learn that one parent is being
investigated for child neglect--a fact that might have changed the
psychologist's opinion.
* Discuss the limitations of their work and make statements about the
certainty of their findings. If no interview is possible, note those
limitations in the report. "It's equally important to offer any
plausible alternative hypotheses that would account for the data,"
adds Kinscherff. In fact, in court cases where the facts are disputed,
Kinscherff lays out the contradictions between the two parties and
then makes a set of recommendations based on each party's side of the
story, leaving it up to the court to decide which party is truthful.
=====
===================
VIDEOTAPE DIAGNOSIS
===================
Telemedicine has been gaining acceptance as an accurate means of
diagnosing a patient. In relation to psychiatric diagnosis, an
interview of a patient is videotaped and a small portion is sent to
the psychiatrist for diagnosis. In the following method, there is no
interaction between the patient and the psychiatrist.
* The psychiatrist makes the diagnosis, but does not conduct the
direct interview. In some cases, the interview is actually conducted
by a person without any substantial background in mental health
*** If this is considered an "ethical" practice by the medical
community, could it not be considered an accurate and permissible
method of diagnosis in a legal case?
(Of course, the subject must still provide their consent)
From "Telepsychiatry: Thirty-Five Years' Experience."(from Medscape
Psychiatry & Mental Health eJournal[TM])
http://www.medscape.com/viewarticle/431064_4?WebLogicSession=Px7TtErbOiF1xE1bmpZRq6G0ZZ5ywV2iWpck9fM3X1HooxqyD2Eb|6615532211675472937/184161395/6/7001/7001/7002/7002/7001/-1
Regarding the lack of psychiatrists in rural areas.....
"One solution to this problem is to give primary care providers access
to evaluation by specialists via telecommunications. For psychiatric
applications, there are 2 basic ways of providing this consultation
service: real-time, 2-way interactive video, with the patient at 1
location interviewed by a psychiatrist at another; and
store-and-forward, 1-way video, whereby a video sample of a patient is
made and then transported to a psychiatrist for review."
"One-way, store-and-forward video is a less expensive modality that
would probably be sufficient for most psychiatric examinations.
Audio-video clips, obtained by a mental health worker, are transmitted
by wire, via the Internet, or through the mail, to be retrieved by a
psychiatrist for examination."
"In a 1-way video system developed by Karweit and colleagues,[11] only
a brief, standardized, videotaped interview is administered, based on
the rationale that only a fraction of the psychiatric exam needs to be
seen by the psychiatrist to make an accurate patient assessment, if
supplemented by a textual record of the interview.
****
"That this is the case will not come as a surprise to most experienced
psychiatrists, and there is already empiric support for the impression
that, once the history is known, an accurate diagnosis can be made
after only a few minutes with the patient.[12]
(Kendell RE: Psychiatric diagnoses: A study of how they are made. Br J
Psychiatry 122:437-445, 1973)
****
====
To sum up what I have found:
Making a diagnosis without direct examination of the subject is not a
direct violation of ethics. Making a diagnosis without direct
examination is not the most desired method of evaluation but can occur
in specific situations. The specific situations have not been
outlined. I would have to spend days looking through random court
cases....akin to finding a needle in a haystack...in hopes of finding
a legal example of such an evaluation or opinion. Without specific
types of cases, or very detailed search parameters, such a pursuit is
too broad to be effective. Numerous search terms did not find specific
cases.
I have e-mailed the American Academy of Psychiatry and the Law
concerning actual situations where such a strategy might be
acceptable. I will let you know if they respond. I also spoke with a
local attorney concerning court testimony by psychologist or
psychiatrist who had not directly examined the subject. His response
was emphatic! "Such situations do occur." When I asked if he knew of
any specific cases or types of situations, his reply was not very
helpful. "No". I contacted another attorney with the same question who
was supposed to call me back with an answer today. He did not, but may
do so tomorrow.
I hope my research provides you with a "level of comfort" concerning
the fact that the rendering of an opinion regarding a person's mental
state without direct examination is not an ethical violation. However,
it would take a cunning legal strategy to define a way to get such
testimony accepted into the court record.
A challenge, but certainly within the realm of possibility!
I am not a legal expert, although I do have a paralegal background.
Most frustrating for me was the fact that no combination of search
terms brought up any specific situations where such examinations have
been noted, except for the two I cited.(the Unabomber case and the
negative article referring to such practices.) After approximately 12
more hours of research today, I believe I have exhausted the means to
find actual situations without some very specific parameters to narrow
down types of cases where such a strategy "might" have been used.
If this answer is not acceptable to you because it did not fully
outline specific situations where such testimony is acceptable, I will
understand. However, it is my impression that each situation is unique
to the case at hand, and to the particular strategies of individual
attorneys!
umiat-ga
Google Search Strategy
psychological ethics AND court testimony
can a psychiatrist make a diagnosis only by videotape?
psychological opinions without direct examinations
can mental illness be evaluated without direct examination?
+psychological +evaluation +without direct examination
diagnosing mental illness based on transcripts
phsychological diagnosis using methods besides direct examination
forensic testimony
forensic testimony and mental illness
forensic diagnosis AND uncooperative client
Journal of the Academy of Psychiatry and the Law
American Psychological Association |
