Reflections on Third Party Observers in Neurologic Forensic Examinations

We have previously discussed in Practical Neurology (2008 7(9);16-18, available online at practicalneurology.net) the need for neurologists who complete forensic neurological examinations to familiarize themselves with relevant laws, practice guidelines, and professional recommendations regarding third party observers of their examinations.1 The intent of this present paper is to provide a list of additional considerations for these practitioners. A forensic neurologist's response to a request for the presence of a third party observer during an examination can be viewed as existing along a continuum anchored at one end with outright refusal and at the other by a practice policy of freely admitting all third party observers into all examinations. Exceptions to enacting one particular approach or another could occur when the examinee is a child, when an interpreter is required, when a judge grants a motion to have an observer present, and when video/audio taping is a reasonable consideration. Most jurisdictional decisions center around how "physician" and "medical" are defined and whether these terms are narrowly construed or not. Case law primarily favors limiting third party observers; State appeals rulings barring the presence of a third party observer are numerous, and decisions regarding their presence are ultimately settled mostly on a case-by-case basis. Alternatively, the Federal Rule of Civil Procedure 35 stipulates that a party is not entitled to have an attorney present during the evaluation except under unusual circumstances. INITIAL QUESTIONS Our experiences with third party observers of forensic psychiatric, psychological, and neuropsychological examinations have ranged from non-disruptive and collegial encounters to the examination devolving into a clangorous disaster. We have seldom been ordered by a judge to admit a third party observer. We routinely refuse admission of third party observers during the administration of psychological, cognitive, and neuropsychological testing while, in most cases, allowing attorneys to be present during the clinical interview. Some states allow video or audio recording of the examination while others stipulate that the third party observer be present. You may have no choice in either regard. If you are uncomfortable with a recording or with an observer present, you may cancel the evaluation and refuse to reschedule. It is helpful to develop your own standards with which you feel comfortable that you can share with all parties prior to scheduling the exam. If one side requests an audio or video tape, consider allowing the other side to also record the exam. This can ensure that the recordings are not edited or inaccurately transcribed. A useful starting point for the forensic neurologist who is asked to complete a forensic neurological examination is to consider the following questions: What type of case is being observed? Who is the third party? What type of observation is requested? What is the potential harm of a third party? How should the third party's presence be documented? With regard to documenting a third party's behavior during the examination, we recommend creating a separate section of the forensic neurological examination report that provides details about the third party observer's behavior during the examination and the potential negative effects that emerged. COLLECTING THE DATA The validity of data obtained by a forensic neurologist may be marginalized by a number of contaminants. These include a patient's malingering of symptoms that may or may not have potential forensic significance, presenting a poor or insufficient effort, a lack of cooperation, and the exaggeration of symptoms. The assessment of malingered neurological impairment should be underwritten by a scientific approach that is seasoned with a mixture of cautious personal ethics. In our opinion, the DSM-IV-TR criteria are insufficiently rigorous, unto themselves, to be thought of as defining parameters. We consider multiple sources of information, including the DSM-IV-TR, objective testing, and semi-structured interviews (SIRS),2 in the clinical decision making process when assessing the issue of malingering. This process should include conducting collateral interviews, whenever possible, with family members. The administration of objective psychological testing, e.g., the MMPI-2,3 and testing that assesses test-taking effort, e.g., the Validity Indicator Profile (VIP),4 the Computerized Assessment of Response Bias (CARB),5 and the Slick criteria,6 are useful in making clinical decisions in this realm. Data from these indices are especially useful when malingering is viewed as existing along a continuum consisting of definite, probable, or no evidence of malingering. Most Minnesota Inventory-2 software programs permit the test to be scored real-time allowing the office to provide a computer-generated testing report. The reports typically include scales that assess the profile's validity, health/neurological symptoms, psychological concomitants of chronic pain, and a critical item scale whose contents have been judged to be indicative of serious psychopathology. Taking time to discuss these MMPI-2 scales with the examinee prior to completing the examination can identify the meaning of neurological complaints ideographically significant to the particular individual in consideration. The Test of Memory Malingering (TOMM)7 can discriminate between malingered and real memory impairments in individuals ages 16-84. The test, which can be completed in 15 to 20 minutes, consists of two learning trials and a retention trial. The TOMM is presented as a difficult test of visual memory but it is, in fact, a simple picture recognition task. The patient is asked to study a series of 50 line drawings followed by 50 trials in which he/she must choose between a studied drawing versus a new drawing. Approximately 95 percent of individuals attain a score of 45 or more correct at the end of the retention trial. Litigants may prep themselves, prior to the forensic neurological examination, by accessing Internet sites that provide tutorials on exam preparation. The literature in this area identifies that search engines such as Google, Yahoo, Altavista, and Dogpile serve up this readership a menu of exam preparation methods ranging from the purely informational and unbiased, to cautionary suggestions, to highly biased recommendations that would likely affect the validity of any examination results.8 Yet another source of contamination that may diminish the validity of a forensic neurological examination is coaching or advice given by family members and friends. The intent of this behavior, in our experience, is primarily benevolent and appears to be generated by anxiety and/or confusion regarding what actually occurs during a forensic neurological examination. The more fundamental worry is whether information taken during the exam will put a wrench into the works of the machinery of the litigants' desired legal outcome. It is useful to question the forensic examinee regarding whom they spoke with and what they were told prior to their undertaking the examination. Also possibly added to this list of potential contaminants of the forensic neurological examination are attorneys who coach litigants in or outside of the consulting room in an attempt to influence their behavior and demeanor in the exam.9,10,11 INVESTIGATING ATTITUDES Two of the authors (TJM/SS) conducted an anonymous survey of the California membership of the American Academy of Forensic Psychiatry and the Pennsylvania membership of the American Academy of Psychiatry and the Law. The survey indexed the respondents' (n=87) familiarity with state and federal laws concerning third party observers of forensic psychiatry examinations and their attitudes about and their experiences with third party observers. The respondent's average number of years in practice was 25. Fifty percent of the respondents did not know how their state laws addressed the issue of third party observers of forensic psychiatric examinations. Seventy-three percent admitted that they were not up-to-date on research regarding the effects of third party observers on forensic psychiatry examinations. Seventy percent stated that the third party observer, of which 50 percent involved an attorney, had no effect on the exam process or outcome. While the sample size in our study limits what may be reasonably concluded about a forensic psychiatrist's experiences with third party observers, a similar analysis of forensic neurological examiners could be a potential source of important collateral data. Our survey results likely point to an analogous need for forensic neurologists to become familiar with their particular state case law regarding third party observers and, likewise, a need to educate themselves about the range of effects third observers can have upon their examinations. IMPORTANT CONSIDERATIONS The list of considerations for forensic neurologists who conduct an examination in the presence of a third party observer should include establishing a practice policy regarding third party observers. We recommend advising the referring attorney, prior to completing the examination, about problems that may be associated with the presence of third party observers. A forensic neurologist who is or becomes uncomfortable with the process may, of course, refuse to complete the evaluation. When we have done this, we typically provide a list of other evaluators. In conclusion, forensic neurological examinations conducted in the presence of third party observers present the clinician with a hybrid of concerns, each of which is underwritten by an inability to accurately predict all possible consequences. We strongly recommend developing a working relationship with the retaining attorney. This may be accomplished though educating attorneys about research findings in this area and establishing an open dialogue regarding one's practice guidelines and concerns. Steven Mandel, MD is Clinical Professor of Neurology at Jefferson Medical College in Philadelphia. Timothy J. Michals, MD is a clinical and forensic psychiatrist and Director of the Division of Forensic Psychiatry, Department of Psychiatry and Human Behavior of the Jeffferson Medical College, where he is an Assistant Clinical Professor. Dr. Michals is certified in Psychiatry, Psychiatry and Neurology, and Forensic Psychiatry. Joseph Pascetta, BA has worked as an intern under Dr. Samuel and conducted significant research on this issue. Steven Samuel, PhD is a Licensed psychologist and Clinical Associate Professor in the Department of Psychiatry, Jefferson Medical College. He has a clinical and forensic practice. Dr. Samuel is involved with researching attachment failures in homeless children and the effects of corporal punishment on children and adolescents. 1. Michals,T.J., Samuel, S. & Mandel, S. Third Party Observers in Neurologic Forensic Examinations. Practical Neurology. September 2008: 7(9);16-18. 2. Rogers, R., Begby, R. & Dickens, S. Structured Interview of Reported Symptoms. Psychological Assessment Resources. 3. Minnesota Multiphasic Personality Inventory-2. Butcher, J., Dahlstrom, W., Graham, J. et al. Pearson Assessments. 4. Validity Indicator Profile. Freeman, R. Pearson Assessments. 5. Candor, R, Allen, L. & Cox, D. Computerized Assessment of Response Bias. Durham, N.C. 6. Slick, D., Sherman, E. & Iverson. G. Diagnostic criteria for malingering neurocognitive dysfunction: Proposed standards for clinical practice and research. The Clinical Neuropsychologist. 1999: 13;545-561. 7. Tombaugh, T.N. TOMM. Test of Memory Malingering. North Tonawanda, NY: Multihealth Systems: 1996. 8. Horowitz, J. & McCaffrey, R. A Review of Internet Sites Regarding Independent Medical Examinations: Implications for Clinical Neuropsychological Practitioners. Applied Neuropsychology. 2006: 13(3);175-179. 9. Gutheil T.G. The Psychiatrist as Expert Witness. Washington DC. American Psychiatric Press, 1998. 10. Gutheil, T.G. Reflections on Coaching by Attorneys. Journal of the American Academy of Psychiatry and the Law. 2003: 31(1); 6-9. 11. Simon, R.: the presence of third parties in the forensic psychiatric examination. Journal of Psychiatry and the Law. 1999. 27(3);3-25.