Best Practices for the Independent Medical Examination of Mental and Behavioral Disorders
Charl Els
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Barry Gelinas
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Rose M. Carter
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Les Kertay
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Abstract

Independent medical examinations (IMEs) are elective evaluations of clinical conditions and differ from a clinical consultation in several important ways. They are conducted in many medicolegal contexts and are performed by a regulated health professional who is not the treating health care provider. An IME seeks objective information about the examinee's diagnoses, functional abilities and impairments, and other features relevant to addressing medicolegal-related cases by relying on multiple data sources. Best practice guidelines have been established for the completion of physical IMEs. However, similar mental and behavioral disorder (M&BD) standards are less common, and M&BD IMEs often do not follow a consistent process. This article offers guidance on applying and adapting existing standards to M&BD IMEs. We outlined the appropriate use of psychiatric nomenclature and how to apply recent changes to Chapter 14 of the AMA Guides to the Evaluation of Permanent Impairment. The article further offers a mechanism for introducing greater objectivity into an otherwise subjective process by employing relevant psychological validity testing and conducting a coherence analysis in formulating an opinion. In summary, we provide a synopsis of current best practices and offer the examiner a method for aligning M&BD IMEs with equally high standards of excellence.

Introduction

Over the past three decades, claims of occupational mental health disability have increased significantly,1 and there is no sign that this will abate anytime soon. After the short and sharp spike of the omicron variant of severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2), we appear to be at the tail end of the physical health impact of the coronavirus disease 2019 (COVID-19) pandemic. However, the mental and behavioral health impact may well just have begun. The statement “There is no health without mental health”2 may never have been more apt than now.

Despite the high prevalence, burden of disease, and economic impact of mental and behavioral disorders (M&BD), these disorders have traditionally been neglected.3 We find ourselves at a time when public mental health appears to be deteriorating, likely as a confluence of several factors, including the stress of the pandemic, record-setting inflation, and the war in Ukraine, which has sparked some fears of escalation into a third world war. The daily, if not hourly, barrage of corrosive news footage may well serve as a triggering psychological stressor to many, against the backdrop of a pre-existing high unmet clinical need. This has—and will foreseeably continue to—adversely impacted impairment,4 providing a plausible explanation for an expected and ongoing rise in disability claims. Given that most independent medical examinations (IMEs) are conducted in the context of disability or workers' compensation, the demand for M&BD IMEs will likely increase accordingly. There is a pressing need to fill not only the service gap to achieve the highest attainable level of mental health but also the highest quality of assessment of mental health impairment and disability. The need for outlining best practice standards for conducting M&BD IMEs is evident.

What Is an M&BD IME?

The M&BD IME refers to an elective, typically one-time, evaluation of an individual, relying on multiple data sources and conducted by a regulated health care professional not under the evaluator's care. The term patient is not recommended when referring to the examinee to avoid creating the impression that there exists a traditional physician-patient relationship (PPR), which is proscribed in conducting an IME. For consistency, the term M&BD IME is preferred over the term “psychiatric IME” or “psychological IME.”

The purpose of the IME is to provide an opinion that is as objective and unbiased as possible and by following a reproducible methodology. This is furnished to the requesting party and is captured in a work product, ie, the M&BD IME report. This report is usually subject to varying degrees of scrutiny and forms the basis for further medical, administrative, and/or legal decision-making.

The M&BD IME is similar to other IMEs but differs from clinical consultations in important ways. Unlike in the clinical consultation context, with an IME, a traditional PPR is absent, and only limited duty of care is established, beyond the duty to perform the IME in an unbiased fashion, resulting in the absence of any duty to advocate. If a request for a second or follow-up IME is made, the examiner should emphasize to the examinee and the referring party the absence of the traditional PPR, as repeat visits to the same provider may potentially be interpreted by the examinee as the establishment of a PPR, which remains proscribed. It is our experience that separating these roles is an especially challenging task for some mental health providers engaging in IMEs. The American College of Occupational and Environmental Medicine (ACOEM),5 the AMA Guides Newsletter,6 and the College of Physicians and Surgeons of British Columbia (CPSBC)7 have published summary guidelines and position statements that can be compared.

Applying Existing IME Best Practices Specific to the M&BD IME

Best practice guidelines for the IME have been published in the AMA Guides Newsletter,6 reflecting a gold standard for conducting IMEs. This article does not aim to replace any existing standard but rather aims to apply existing principles to the M&BD IME setting. It also offers commentary on the need for the appropriate use of psychiatric nomenclature (currently generally using the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5)8 and DSM-5-Text Revision (DSM-5-TR)9 and the introduction of objectivity into the M&BD IME. We also integrate recent 2022 changes to the AMA Guides to the Evaluation of Permanent Impairment (AMA Guides, 2022), Sixth Edition(2022),10 (available online only in digital format). The DSM was developed to meet clinical as opposed to forensic assessment needs and should be applied with caution for forensic purposes.9

It is our experience that, with some exceptions, the high standards for nonpsychiatric IMEs6 are often not met for M&BD IMEs. The single most salient deficit commonly observed has been the pervasive disregard for introducing sufficient objectivity into the IME process. It appears that the average M&BD IME relies mostly or even solely at times on examinee self-report, and opinions are offered in the absence of incorporating a reasonable degree of objective findings for the diagnosis of a mental disorder. Although relevant, scientifically validated psychological testing is available to introduce validity to the IME, but it appears to be widely neglected in M&BD IMEs. Given that there is nothing objective about the existing diagnostic system for mental disorders,11 in this article we implore M&BD IME providers to adhere to a minimum standard of introducing a sufficient level of objectivity into the IME process. Failure to do results in an opinion of likely inferior value, carrying less weight, or even rendering it invalid. Further limitations commonly observed in M&BD IME reports are the absence of applying a formal protocol to rule out malingering, the lack of adequate cognitive and personality testing, and the erroneous assumption that the presence of a mental disorder is predictive of, or tantamount to, impairment and/or disability, or that a particular mental disorder implies a lack of control over conduct.

Qualifications of the IME Provider

Disability evaluations represent the most requested M&BD IMEs, and these are typically performed by psychologists and psychiatrists, with or without subspecialty training in forensic practice.12 The IME is typically regulated as a medical service, albeit a nontreatment service, and the examiner is required to hold the necessary medical license in the relevant jurisdiction to perform the IME. The examiner is also expected to remain in good standing with the state medical board (United States) or provincial regulatory body (Canada). Furthermore, the examiner should possess sufficient experience, knowledge, and skills to competently perform a specialized service of this nature. There exists no explicit requirement for any additional or special qualification or credential as a prerequisite to performing IME services in Canada or the United States. Health professionals performing IMEs are strongly encouraged to participate in continuing education training activities and to obtain certification offered by one or more of the organizations that offer ongoing education and peer support, eg, the International Academy of Independent Medical Evaluators (IAIME), the American Board of Independent Medical Examiners (ABIME), and the Canadian Society of Medical Evaluators (CSME). However, none of these entities' added credentials are recognized by the American Board of Medical Specialties or its Canadian credentialing counterparts; therefore, IME providers must be sensitive to local practices as well as local jurisprudence and ethical realities.

Ensuring That There Is No Dual Agency Conflict

The opinion of the treating physician is commonly asked as a single source of information. However, where an independent and nonpartisan opinion is needed to adjudicate a specific disability or other matter, the necessity for an IME arises, as opposed to relying only on the treating healthcare provider's opinion. In a traditional treatment/consultation context, a PPR is established, which incurs an expectation to advocate for the patient, rendering the treating professional's opinion biased and partisan. These two roles are distinctly different and are usually irreconcilable; assuming both roles should be avoided as it represents a potential for a material breach of ethics. Advocating for any party, either the retaining party or the examinee, is explicitly prohibited in an IME.

Given the common occurrence of cognitive deficits associated with some mental disorders, special care should be taken to ensure that the M&BD IME examinee fully understands and appreciates the nature of the encounter and the absence of a traditional PPR, along with the absence of a duty to advocate. This may require additional time; providing appropriate information in the form of print material may be of benefit. The examiner must be satisfied that the examinee understands and appreciates the examiner's duty to offer fair, nonpartisan, and objective assistance in the matter and that no duty to treat or to advocate exists. Notwithstanding a limited or absent PPR, the examiner is expected to meet the same high standards and ethical obligations as would apply to a clinical consultation, eg, boundaries (sexual and otherwise) have to be respected, and the AMA Code of Medical Ethics Opinions on PPR applies.13 Notwithstanding the mental health professional's compassion for the emotional pain or suffering the examinee may have endured, or continues to endure, the process must be completely void of advocacy by the examiner. In a typical mental health treatment context, there is a close alliance between the treating physician and patient; in the case of M&BD IMEs, the examiner must consciously remain neutral and unbiased (as much as possible). The burden in M&BD IMEs may be greater and more challenging than in other IMEs.

Where a treating health professional simultaneously or sequentially assumes the role of M&BD IME provider in a patient under their care, several serious concerns arise as a result of a so-called dual agency bias. This has the potential to result in a fatally flawed IME process due to perceived or actual bias owing to the duty to advocate. By its very nature, the IME precludes the examiner from considering a balance between nonmalfeasance and beneficence, which exists in a traditional PPR and treatment relationship. Several other risks exist,14 including risk of compromising the quality of patient medical care and treatment relationships with attending providers, risking adverse outcomes, and financial conflicts of interest. When treating professionals nevertheless decide to weigh in on forensic matters, a substantial challenge emerges for the trier of fact and/or administrative decision-maker, who is then likely deprived of the impartiality of the process,14 an essential quality required to reach a fair and unbiased conclusion. Ethical and professional standards preclude the treating health professional from conducting an IME or opining on a forensic matter of a patient under the professional's care.15-17

Treating physicians are, however, occasionally asked to opine on disability matters, especially to assist in the adjudication of relatively uncomplicated and likely uncontested matters. The opining professional should be cognizant of the risks and the potential ethical conflict, as well as the notion that the relative weight attached to the opinion of a treating physician may be substantially less than that of an independent opinion. In some jurisdictions, however, there may be a presumption in favor of the opinion of the treating health care professional over that of the IME provider. Giving appropriate weight to the health care provider's opinion should be considered, but that may still be outweighed by the opinion of the IME provider, even where the IME was conducted solely for litigation or other civil forensic purposes. The presumption does not give the treating physician unlimited credibility,18 and consideration should be given to the issue of bias (within a PPR) and the usual absence of sufficient psychiatric validity testing or of ruling out of malingering or contributory personality-related factors in the context of clinical consultations.

As a general rule, assuming the role of both the treating health care provider and the IME provider has the likely potential to create irreconcilable conflicts due to differences in the applied methodology, ethics, PPR alliances, and treatment goals.14-17 Establishing a dual role should be avoided, because it potentially deprives decision-makers of the degree of objectivity needed to fairly adjudicate matters.14.

Scope and Arena

Although several different arenas exist within which the M&BD IME is conducted, it focuses on evaluating some aspects of the presence and/or impact of a mental health disorder, which includes substance-related disorders (SRDs). For the purposes of this article, the DSM-58,9 definition of a mental disorder is used:

A mental disorder refers to a syndrome characterized by clinically significant disturbance in an individual's cognition, emotion regulation, or behavior that reflects a dysfunction in the psychological, biological, or developmental processes underlying mental functioning. Mental disorders are usually associated with significant distress or disability in social, occupational, or other important activities. An expectable or culturally approved response to a common stressor or loss, such as death of a loved one, is not a mental disorder. Further, socially deviant behavior (eg, political, religious, or sexual) and conflicts that are primarily between the individual and society are not mental disorders unless the deviance or conflict results form a dysfunction in the individual…

The M&BD IME scope is determined by the medical information requirements of the requesting party. Within their ambit of expertise, the M&BD IME provider may be requested to clarify any number of the following:

  1. M&BD diagnoses;

  2. Occupational capacity, risk, and tolerance to establish the medical basis (if any) for limitations and restrictions, as well as work accommodations;

  3. Impairment relating to the M&BD(s);

  4. Nature and extent of putative disability (partial/total, temporary/permanent);

  5. Workability/fitness-to-work (or fitness-to-practice for regulated professionals);

  6. Care and treatment (adequacy of past treatment; response to treatment; reasons for partial or nonresponse; the achievement of maximum medical improvement [MMI] as defined in the particular context and jurisdiction; treatment adherence [compliance]; future recommended treatment); and

  7. Causation and work-relatedness.

There is no single or standard set of questions to be posed by the retaining party to the M&BD IME provider. Rather, the questions typically posed are pertinent to the focus of the requested assessment and the context or arena. Each arena has its own characteristics, expectations, and rules, some of which may be nuanced—the M&BD IME provider must be familiar with the differences and the application of appropriate medical and jurisdiction-specific legal tests. The complexity of M&BD IMEs varies widely across arenas and individual cases and focuses primarily on the evaluation of psychiatric conditions, which include SRDs. Examples of sample questions7 posing arena-specific expectations communicated by the requester to the M&BD IME provider are as follows:

  1. Symptoms:

    • Provide an M&BD history of current and past symptoms, including current symptoms, describing each symptom's onset, frequency, and severity.

    • Is there self-reported impairment (including physical, motor, cognitive, or affective)?

    • In addition to the self-reported impairment, what is the objective evidence of impairment (including physical, motor, cognitive, or affective)?

    • What are the predisposing, perpetuating/aggravating, and modulating factors in the development of impairment?

    • Are the self-reported impairment and self-reported limitations and/or restrictions consistent with the impairment observed by the examiner during the IME, and are these consistent with the results of the objective impairment (and validity) testing?

    • Provide a mental status examination (MSE).

  2. Diagnosis:

    • Can a specific diagnosis be made within reasonable medical certainty using the criteria of the current version of the DSM-5 diagnostic system, or an alternative such as the International Classification of Diseases, Tenth Revision (ICD-10)ICD-10? (Note: The DSM has been criticized by some in terms of its ability to reliably differentiate between diagnostic entities. Uncertainty is to some extent inherent in making a psychiatric diagnosis, given reliance on symptom self-report and potentially imperfect observations of the examiner. Nevertheless, a DSM diagnosis is typically required in the United States and Canada and some other countries, and use of the system is expected. As such, our recommendation is to adhere as closely as possible to diagnostic criteria as written in the DSM, to explain clearly how criteria are [or are not] met, and to describe in detail how the diagnosis was made. Also of note, as with all medical opinions given in a legal arena, the diagnosis is given within reasonable medical certainty based on the system employed by the examiner.) In cases of SRDs, the request may be to include the DSM-IV-TR,19 which distinguishes between the diagnostic entities of substance abuse (recognized as a risk factor for impairment but not commonly recognized as a bona fide disability) and substance dependence (recognized as a risk factor for impairment and a bona fide disability in some jurisdictions), which is required for determination of duty to accommodate to the point of undue hardship under prevailing labor and human rights legislation;

    • What is the DSM-5 and/or ICD-10 diagnosis, including secondary or other diagnoses?

    • If unable to formulate a diagnosis, should further clinical investigations be undertaken (ie, laboratory, imaging, physical or cognitive testing) to attempt to reach a diagnosis? Note: Further clinical investigation would be recommended only if it would likely yield better diagnostic certainty.

    • Can the diagnosis be confirmed or refuted if there is a working or suspected diagnosis already?

    • Questions of causation, applying the requisite level of medical certainty, ie, more likely than not, are addressed using the “but for” test, or the “material contribution” test.

  3. Contributors to impairment:

    • Is there evidence of nonmedical contributors to impairment?

    • Are there other medical or nonmedical variables that may impact the examinee's treatment participation and/or recovery?

    • Are there workplace issues present, eg, workload, performance issues, interpersonal difficulties with supervisors, co-workers, and/or management, disciplinary issues, or threats of termination? Has the examinee been applying for work elsewhere or for other positions?

    • Have concurrent SRD issues (or consumption of substances not meeting the threshold for the diagnosis of an SRD) and/or physical disorders and their treatment contributed to impairment?

    • Is there evidence of the presence of a personality disorder or salient personality traits (not meeting the threshold for the diagnosis of a personality disorder) impacting impairment and/or disability?

    • Do medication effects contribute to the self-reported and objectively established impairment?

    • What impact has any of these issues had on the person's psychiatric status, impairment, and functioning?

    • What is the examinee's motivation to get well and to work? What is the level of occupational tolerance? What are the factors affecting such?

  4. Functionality:

    • What is the person's level of functionality, including basic and/or instrumental activities of daily living (ADLs/IADLs) (6th ed [2022], Table 14-4, Functional Impairment Scales for Patients With Mental and Behavioral Disorders [M&BDs]).10 This includes the evaluation of:

      1. Self-care, personal hygiene, and other ADLs (6th ed [2022], Table 14-9)10;

      2. Role functioning, social and recreational activities (6th ed [2022], Table 14-10)10;

      3. Travel (6th ed [2022], Table 14-11)10;

      4. Interpersonal relationships (6th ed [2022], Table 14-12)10;

      5. Concentration, persistence, and pace (6th ed [2022], Table 14-13)10; and

      6. Resilience and employability (6th ed [2022], Table 14-14).10

    • In considering the impact on occupational capacity, it is important to understand the bona fide occupational requirements of the examinee's occupation. Are there workplace limitations, ie, are there work-relevant activities that the individual is unable to perform? Are there additional limitations expected from treatment (eg, sedating antidepressants impacting cognitive function)?

  5. Risk:

    • In considering the impact of occupational risk, it is important to determine whether the occupation is safety-sensitive and/or decision-critical (see Chapter 22 in the AMAGuides to the Evaluation of Work Ability and Return to Work20). In a risk analysis, an opinion should be offered on the magnitude and probability of harm. Work restrictions are only recommended if there is a meaningful risk of harm to the individual or to others.

    • In the risk analysis, the following questions are pertinent:

    • Are there any occupational or other risks to working?

    • What types of harms could come to the examinee, co-workers, or the public due to the impairment?

    • Is there a duty to protect or a duty to warn?

    • What (if any) accommodations need to be implemented to ensure safe and effective return to work or for the continuation of existing duties?

    • Are there workplace restrictions (eg, restricting safety-sensitive and/or decision-critical duties) that should be imposed? Are there additional restrictions expected from treatment (eg, sedating antidepressants, the authorized use of cannabis for medical purposes)?

  6. Treatment:

    • What has treatment consisted of to date, ie, pharmacotherapy, psychotherapy, other M&BD treatment?

    • In assessing treatment, the AMA Guides Section 14.4b, Response to Treatment, suggests also inquiring about whether the treatment course has been adequate, whether treatment has been appropriate by accepted guidelines, whether treatment has resulted in improvement in functioning, and whether a suitable range of treatment options have been applied?

    • In gauging treatment response, has MMI been achieved?

    • Provide specific treatment recommendations (current and future), eg, medical and/or surgical treatment, psychotherapy, residential, inpatient, outpatient, or other treatment programs;

    • Comment on the implications of such recommended treatment for further impairment/disability arising from the recommended interventions (for example, the impact of sedating psychotropic medication on the worker's ability to maintain an on-call schedule or rotating shift work);

    • What factors, both medical and nonmedical, may impact treatment adherence and treatment response?

  7. Ongoing monitoring recommendations:

    • Are there recommendations for ongoing monitoring (eg, biological [random drug and alcohol testing], performance, or behavioral monitoring at work) to enhance and ensure sustained safe practice?

    • What is the appropriate frequency of monitoring activities and contact with a designated monitor?

    • Which other clinicians need to be engaged, from whom (if any) should the treatment provider receive reports, and at what frequency should monitoring reports be submitted?

  8. Prognosis:

    • What is the prognosis (with or without treatment) for improvement and return to premorbid (or highest attainable) level of occupational functioning?

    • What requirements must be met for sustained work or return to work? What requirements must be met before return to practice (eg, period of disease stability or length of time in recovery)?

    • What are the medical and nonmedical factors that may impact prognosis?

  9. Limitations to the M&BD IME report:

    • What are the limitations to the examiner's assessment and report, including the relative diagnostic uncertainty?

    • Are there questions about clinical issues that fall outside the scope of the evaluating professional's IME?

    • Is there a recommendation that another evaluator be enlisted to perform further evaluation?

Specific tort-related, causation or work-relatedness questions should be addressed on their own merit. Irrespective of the arena, providing additional insight into the above not only is germane to disability adjudication but also can aid in dispute resolution between parties, eg, in grievances, human rights complaints, medical or legal professionals' regulatory complaints, or where critical differences of opinion between parties have emerged. It can also form the basis for the determination of work-relatedness of a medical condition or the impact of an M&BD on conduct. Furthermore, it may aid in causation analyses, eg, to determine if there is a sufficiently close nexus between a M&BD and workplace conduct or if a tort-relevant stressor caused and/or materially contributed to the development of a psychiatric disorder and any apportionment of damages determination.

Methodological Considerations

Following the initial contact between the requesting (or retaining, or referring) party, and after a service agreement has been executed, the M&BD IME is performed. This consists of a number of sequentially performed tasks:

  • Review of background information;

  • Taking a comprehensive history;

  • Conducting an MSE;

  • Reviewing pertinent further testing, including psychological (including validity testing and self-reported measures);

  • Conducting additional testing, including laboratory (eg, toxicology), and radiology or other testing; and, finally,

  • Formulation and submission of a written report.

Each step is addressed in more detail as follows.

Best practices for IMEs are available elsewhere,6 as this article outlines only a small number of select applications that may be unique to the M&BD IME. Although not sufficiently studied, there is no evidence to suggest that an M&BD IME conducted virtually is of inferior validity compared with those conducted in person, provided the methodology followed is comparable and testing has been validated for remote administration of the IME.

Establishing a Service Agreement in Advance of the IME

The requesting party typically initiates contact with an IME provider of their choice, or a mutually agreed-upon provider. Upon receiving a request for an IME, and prior to accepting the mandate, it is the examiner's duty to determine whether the nature of the request for an IME falls within their ambit of expertise and experience. After agreeing to accept a case for completion of an M&BD IME, executing a written service agreement between the requesting party and the examiner is strongly recommended. This provides a degree of protection to the examiner against later complications, eg, nonpayment of fees (the rates of which are established by the examiner) and other conduct (by the requesting party) that may not conform with expected ethical norms or practices. The requesting party is typically expected to furnish written communication to the examiner to provide relevant background information, as well as to outline the reason(s) for requesting the IME, hence defining the scope of the IME and the subsequent report. The requesting party typically formulates specific questions to be addressed by the examiner in the completion of the IME. Direct contact with or communication between the IME examiner and the examinee in advance of the IME is discouraged. An example of a generic service agreement for M&BD IMEs is available from the authors.

Reviewing Background Information

As is the case for other IMEs, the M&BD IME requesting party furnishes pertinent background information to the examiner in advance of the assessment. Given that the mental health background information can constitute thousands of pages of material, ample time should be allowed for the examiner to review this information, preferably no less than 2 weeks (or a timeframe deemed appropriate by the examiner) in advance of the IME.

Some IME examiners, in an apparent attempt to limit bias, prefer a different sequencing of IME events, ie, first conducting the face-to-face part of the IME, followed by a review of the background information. While this approach may hold some advantages, it is not generally supported. It is not uncommon to encounter discrepancies in the submitted background documentation and/or previous reports vs the information obtained during the IME history-taking. The accuracy and validity of the IME report may be weakened, and it may even be fatally flawed if the examiner relies on incorrect assumptions and has not been able to reconcile discrepancies. For M&BD IMEs, it is recommended that the methodology outlined in the AMA Guides be followed (6th ed [2022]). It confirms the importance of reviewing medical records prior to performing an evaluation, as this will enable the examiner, among other things, to clarify or at least document inconsistencies, if any, between the history provided by the examinee and history obtained from the medical records, and to reconcile inconsistencies. This is necessary, in part, to accurately apply the National Institute for Occupational Safety and Health criteria21 in some arenas, which require assessing for evidence of exposure and other relevant factors through a thorough records review.

The M&BD IME provider should be aware of the deliberate and strategic omission of information in the submission by the requesting party in their submission of background information. The examiner's reliance only on partial information may foreseeably impact the accuracy and validity of the rendered opinion. It is incumbent upon the M&BD IME examiner to request additional information if submitted information is deemed incomplete, insufficient, or if anticipated information is absent. If the requesting party declines access to relevant and reasonably fulsome information, such refusal is documented, as well as the impact it may have on formulating the eventual opinion and its validity.

Unless there is explicit written consent and agreement from the requesting party, the examiner should refrain from communicating with any other third party or treating health professionals, or independently collecting data from sources not approved by the requesting party. Similarly, the examiner should refrain from independently searching social media databases for the purpose of expanding data sources in the absence of consent to do so. If there is any indication that a review of these platforms would contribute to a more fulsome and valid opinion, a request for accessing such should be made to the requesting party.

In evaluating M&BD claims, it is imperative to access longitudinal medical information. There are jurisdictional differences in the allowable timeframe for information that can be accessed (eg, in unionized settings a restriction on access is often imposed). In causation analysis cases, the presence of cumulative trauma, eg, associated with adverse childhood experiences, may be particularly relevant.22 Similarly, it should ideally include those reflective of the onset of the condition (which may date back to childhood, where adverse childhood experiences are considered to have contributed to a mental disorder) until the present date, although they are more likely to be based on what is reasonably available and considered relevant.

Logistics of the IME Appointment

Given the cognitive limitations that may be associated with M&BD, greater tolerance is expected for lateness for the IME appointment, or encountering unforeseen events associated with mental health.

Accompanying Other Third Parties

Although the AMA Guides suggests that the individual should be examined alone (6th ed, 351-352), we recommend retaining and having a chaperone present for M&BD IMEs. This can increase the comfort of a vulnerable examinee, especially in cases of past sexualized or transgenerational trauma and where a physical examination is indicated. It is also of benefit to the examiner to have a witness present, given the high risk of medical regulatory authority complaints associated with conducting IMEs.

If there is a request for another party to be present, such as the examinee's legal counsel or designate, the examiner has the right to decline conducting the IME. In some jurisdictions, however, there may exist a mandate to have another party present, and it is the examiner's duty to familiarize themselves with the particular jurisdictional requirements.

Video and Audio Recordings of the Proceedings

Although some jurisdictions allow for the examinee to opt for the use of audio or video recordings of the IME, examiners are generally not obliged to accept referrals where the examinee exercises this right. Unless arranged in advance of the IME, and conducted with the full knowledge of all parties, while adhering to forensic standards for quality control, the use of recording devices (eg, a smart phone) by the examinee is not recommended and should not be allowed. The examiner should maintain a high degree of vigilance to the occurrence of surreptitious recordings by the examinee. If it comes to the examiner's attention that the proceedings are recorded without consent, it is recommended to terminate the IME. Arranging for a forensic-quality recording may incur substantial costs to the requesting party, and it is not conducted in the majority of M&BD IMEs.

It is recommended that the examiner is familiar with the jurisdiction's legislation on consent required for making recordings (some jurisdictions allow for so-called “one-party consent” exceptions).

Checking Picture Identification

As a matter of routine, and before the onset of the IME, the examiner should obtain proof of identity of the examinee by inspecting a source of government-issued picture identification, such as a state or provincial driver's license. Given that some M&BDs may be associated with paranoia, this may pose a salient challenge and requires careful navigation and explanation. If taking a photograph of the examinee is part of the examiner's practice, consent is required. In the absence of a valid identification document, it is recommended that the report include a detailed description of the examinee's appearance to ensure that no substitute examinee has presented for the IME.

Ensuring Valid Informed Consent

Following reasoned mental deliberation, consent is generally seen as a “free act of the mind.” Hence, given the potential for cognitive deficits associated with M&BDs, special attention should be given to ensuring valid consent is achieved. The examiner should explain the process in terms the examinee would understand, cognitive limitations notwithstanding, and positive confirmation of such should be sought from the examinee. It is recommended that the examiner provide a detailed explanation of each item in the consent (written in no greater than a grade 6 reading level) and for the examinee to signify that they understand the particular item and agrees with such by providing an initial on the consent form. Of particular importance is ensuring that the examinee understands that the IME is conducted in relation to a specific medical issue, and in a specific arena, as communicated by the retaining party, and that the IME is not conducted as part of overall healthcare service delivery.

It should also be confirmed that the examinee has both the capacity and is willing to provide voluntary, informed consent without any degree of coercion. Assurance should be sought that the examinee has a reasonable understanding of the nature of the M&BD IME, the limitations of confidentiality, the absence of a PPR (and thus precluding advocacy), and the later disposition of information. If an examinee is unable or unwilling to provide consent, the IME is terminated, and the requesting party is notified of the termination and the reason for such. The examinee should be advised that termination of an IME may impact the adjudication of the matter under discussion with the requesting party, and that the examiner is unable to predict the outcome of the termination of the IME. The decision to provide valid written consent, and whether to proceed or not, is one only the examinee can make, and the individual's right to self-determination should be emphasized. The examinee should be reminded that they have the right to withdraw consent at any time. Consent should be dated, and the signature of a witness (eg, a chaperone of the appropriate gender, already present during the IME) is required. The examiner should also advise on their duty to protect and the duty to warn23 and that any questions related to ongoing health care service delivery should be directed to the examinee's attending health care provider.

The examinee should be advised to report to the examiner any significant emotional or subjective distress arising during the IME. As needed, the IME should be terminated to address emerging issues. The examinee should also be informed that they do not need to perform any test or engage in any aspect of the M&BD history if they feel it might act as an emotional trigger or if it significantly worsens subjective distress, and to immediately report such to the examiner. If excessive distress results, the IME should be discontinued and resumed at a different time.

Failure to obtain consent, or if the examinee consents only to some aspects of the IME but not to others (eg, refusing toxicology testing [when indicated], or refusing to engage, or only partially engaging in psychological or other testing), it is likely that the derived opinion may not be accurate and hence invalid — it would unlikely be a valid reflection of the examinee's true clinical state. The examinee should be advised and given an opportunity for remedial action. Failing that, and in the absence of a reasonable degree of adherence, the examiner is not under any obligation to proceed, and the IME should be terminated. The requesting party should be notified where an assessment does not proceed; no responses to questions posed should be offered to the retaining party that a valid assessment was not completed, even if the examiner has already formed a tentative clinical impression.

Although consent is routinely sought, it is not legally required in all cases. Depending on the jurisdiction, cases that have been referred by court order or statutory direction to undergo an IME may be exempt.

Achieving Appropriate Sensitivity and Humility During the M&BD IME

Sensitivity should be maintained to the issues of the stigma of mental illness and the cultural differences that may exist. The AMA Guides (2022)10 suggests that cultural differences between the examiner and the examinee can greatly increase the risk of the examiner misinterpreting the responses. Such misinterpretation may result in an invalid opinion. Recognizing cultural differences is especially important in mentally ill persons where cognitive deficits may exist. An awareness of cultural humility is required from the examiner, as it suggests to the examinee that the examiner is aware of and has consciously adopted an interpersonal stance that is “other-oriented” in relation to the cultural identity most important to the examinee. Sensitivity and awareness are key for examiners.

As per the AMA Guides (2022),10 the examiner is expected to use qualified interpreters, and not family members or untrained staff. The necessity for the selection of an interpreter is done in advance of the IME, and the question of who funds such services should also be established in advance—it is typically the responsibility of the requesting party.

Interactions During the IME

Appropriate time should be allowed for the completion of each task related to the M&BD IME. During the assessment, unnecessary social or unrelated conversation should be limited, and if the person needs immediate mental health care or stabilization, the IME should be postponed. During interaction, care should be taken to avoid abrasiveness or comments perceived as disrespectful, and mentally ill persons may be especially vulnerable to perceiving the IME as a hostile environment. Given the stigma associated with M&BDs, and pre-existing sensitivities, special attention should be given to treating the examinee with dignity and respect, without offering therapy. Ensuring reasonable comfort and maintaining privacy are priorities; steps should be taken to ensure the IME environment is as stress-free as possible.

Completion of Health Questionnaires

Prior to obtaining the psychosocial history on the day of the M&BD IME, the examinee may be asked to complete a predefined health questionnaire in their own handwriting, preferably without the assistance of a third party. The typical health questionnaire involves capturing the examinee's previous and current history, including a review of medical systems, thus facilitating the history taking on the day of the M&BD IME. This allows the person who may have cognitive deficits or reduced processing speed owing to an M&BD to perform this in their own time. It serves as an additional source of corroboration should an opinion be challenged at a later stage.

Identification of Psychiatric Symptoms

A history of past and current symptoms should be obtained. To maximize the reliability of the clinical history, the examiner should attempt to establish anchor points and memorable milestones, decompose generic memories, and request the recall of the clinical history in a retrograde fashion, beginning with the most recent events and working backward.24 Incidents or accidents that resulted in any symptom should be documented in detail. Each reported symptom should be explored in terms of date of onset, perceived and self-reported severity, as well as investigations conducted and treatment received.

Although focused on the mental health aspects, the M&BD IME interview should also include current injury and/or illness, past medical history, occupational and environmental history, birth and developmental history, adverse childhood experiences, social and family history, military history, legal history, and substance-related history. Where authorization of cannabis for medical purposes is claimed (as is legal in Canada and select states in the United States), written proof of such authorization is required in the form of a certificate or a physician note.

Finally, ADLs should be explored. Brigham et al6 suggest screening for the following: feeding, grooming, bathing, dressing, and toileting and IADLs (complex skills needed to function independently, such as using the telephone, doing laundry, preparing meals, care of others, managing finances, shopping, taking medication, managing transportation). Obtaining a description of the examinee's daily routine (exercise, outdoor activities, recreation, household chores, etc) and changes from premorbid status is recommended. Finally, the examiner should screen for the presence of any premorbid symptoms and functional status compared with current status. The American Psychiatric Association's (APA's) Practice Guidelines for the Evaluation of Adults25 provides a fulsome description of the domains of the mental health assessment.

The examiner should maintain an index of suspicion that the examinee may have been coached in advance of the IME, thus introducing bias in the IME. Comparing the information obtained during the assessment with the information obtained during careful review of the medical records in advance of the IME can aid in detecting this.

Using Psychiatric Screening Tools

Section 14.2, Psychiatric/Psychological Evaluation, of the AMA Guides (2022)10 notes the following:

It is important to distinguish between the use of screening and other self-report instruments and the use of standardized psychological testing instruments or batteries. Although commonly used in clinical practice, screening instruments such as the patient health questionnaires (eg, PHQ-2, PHQ-9, PHQ-15), the generalized anxiety disorder screener (GAD-7), and self-report measures, such as the Beck Depression Inventory (BDI) and Beck Anxiety Inventory (BAI), lack validity scales and are subject to influence from non-clinical factors that might affect the degree to which the test-taker wishes to appear more, or less, symptomatic.

Section 14.3c of the AMA Guides(2022),10 provides further discussion of motivation and how it may impact the M&BD IME.

Screening instruments can convey important information about the extent of symptoms reported by the examinee and, in a person motivated to improve, might be a helpful tool in gauging clinical progress. The AMA Guides (2022)10 suggests that these instruments can also be used to identify the need for additional testing. Additional normed testing allows for symptom validity testing, detection of response bias, examinee motivation, confirmation of the diagnosis of cognitive and personality disorders, as well as ruling out malingering (which is not a DSM-5 diagnosis) with a reasonable degree of medical certainty and on a balance of probabilities.

The Mental Status Examination

An MSE should be completed by the examiner, detailing the following domains:

  • Appearance and general behavior;

  • Motor activity;

  • Speech;

  • Language and communication;

  • Mood and affect;

  • Thoughts and perception;

  • Sensorium and cognition;

  • Judgment;

  • Insight;

  • Reliability as historian;

  • Behavior; and

  • Safety risk.

The examiner should take caution when documenting observations about the examinee's credibility or reliability as a historian, as these determinations typically fall in the domain of the trier of fact. However, the examiner can document the presence of observed bias and/or impression management, any observed differences between subjective self-report and objective findings, as well as discrepancies between observed difficulties and claimed injuries.

Conducting a Physical Examination (If Indicated)

The physical examination is frequently not contributory, or of limited value in establishing the diagnosis of a mental disorder, and hence not routinely conducted as part of the M&BD IME. However, if there is a reasonable indication or a physical cause is suspected as a contributor to the impairment, or if complications from an SRD (including intoxication or withdrawal) are anticipated, a physical examination may be indicated. Note: If the examinee is reasonably deemed impaired at the time of the IME, they should be advised not to operate a vehicle until fit to do so, the IME should be deferred, and the requesting party should be notified.

Consent must be obtained prior to proceeding to a physical examination with a full explanation to the examinee of why a physical examination is needed. An additional consent form must be signed if the possibility of the need for a physical examination is not included in the original consent. If the M&BD IME is court ordered, the examiner must discern if the order includes the possibility of a physical examination. However, depending on the jurisdiction, most court orders for M&BD IMEs do not include an order for a physical examination.

The systematic physical examination should elicit positive objective and negative findings, which should be carefully documented. Close observation should be maintained for signs of pain and discomfort, and the examiner should take caution in not contributing to harm or becoming the source thereof.

Ensuring the maintenance of patient dignity and respect during the physical examination is paramount. Although self-evident, any perception of physical roughness should be avoided; this is a frequently encountered complaint following the completion of physical examinations during IMEs.

Obtaining Collateral Information

Collateral information, with consent of the referring party and the examinee, should be sought from others (eg, a significant other or family member[s]) who may have direct knowledge of the examinee's medical condition, its severity, and the resultant impairment and impact on domains of functioning.

Additional Testing

The completion of toxicology testing, diagnostic imaging studies, electrodiagnostic studies, and other functional testing necessary to formulate a psychiatric opinion is conducted on the merit of the particular case (eg, a thyroid function test in a depressed person or a toxicological test for stimulants in a person with panic disorder or psychosis). In the evaluation of SRDs, toxicology testing is commonly indicated as part of the M&BD IME — claims of abstinence and sobriety cannot be taken on face value based on the examinee's self-report and should be chemically corroborated. Consent is not implied and should be obtained separate from the IME consent. It should be documented that the examinee was advised that a no-show for toxicology testing may be interpreted as the equivalent of a positive test result.

Where toxicology testing of biological specimens is conducted, the entire process must be consistent with prevailing standards.26 The collection of samples may be delegated to staff under the supervision of the examiner, and staff must have completed adequate training on protocols for specimen collection, chain of custody, and further requirements, for example, as set out by the Medical Review Officer Certification Council (MROCC), the American Association of Medical Review Officers (AAMRO), or an equivalent entity. The collection should follow the chain of custody protocols, and the process should be overseen by an independent medical review officer. Clinical toxicology testing typically does not meet the rigorous standards of forensic testing required in an IME.

Introducing Objectivity Into an Otherwise Subjective Process

The M&BD IME should not rely solely on self-report by the examinee. Any diagnosis formulated should be based on direct observation and objective evaluation, and reliance solely on subjectively self-reported information should be avoided. The minimum standard for an M&BD IME should include using a sufficient degree of objective evidence. In the absence of such objectivity, the report cannot be viewed as much more than a description of the examinee's self-reported information. Furthermore, clinical skills alone are usually not sufficient to diagnose or detect malingering.27

The most reliable source of objective findings for the diagnosis of a mental disorder is not the examiner's clinical impression but rather relevant, scientifically validated psychological testing.14 Formal validity testing is considered a minimum standard and an indispensable component of the M&BD IME, and reliance solely on self-report significantly limits the validity and utility of the IME. It may erode the later weight attached to it by the trier of fact.

Another common deficit in IME methodology is the failure to assess the impact of personality-related pathology or trauma-related pathology. Section 14.2 (Psychiatric/Psychological Evaluation) of the AMA Guides (2022) suggests that psychiatric self-report instruments “must be supplemented by, and interpreted along with, all remaining features of the examination, including the interviews, records review, collateral data, mental status examination, and any psychological testing. By themselves, scores on screening or other self-report measures should never be considered diagnostic or definitive.”10

Supplementing the examiner's comments on whether there existed a discrepancy between self-reported (subjective) symptoms and clinically observed levels of impairment or other objective findings, validity testing may confirm or refute the presence of material impression management (positive or negative) or response bias.

It is the expectation that psychological testing be conducted and interpreted by an appropriately trained person and that the results be triangulated with the other data sources. There must be attention to the internal consistency of psychological test findings and that the testing performed contained two or more symptom validity tests (6th ed [2022], Section 14.2).10 Such validity tests are an important addition to the medical evidence.28 Commonly used validity tests include the Medical Symptom Validity Test (MSVT), Structured Interview of Reported Symptoms (SIRS), Structured Inventory of Malingered Symptomatology (SIMS), and the Personality Assessment Inventory (PAI). In addition to the history and the validity testing, formal screening for major medical conditions should occur. In addition to the assessment, the examinee may be asked to complete a range of rater-administered psychiatric scales, consistent with the scope of the evaluation.

If any inconsistencies exist in the testing, either internal or external, these should be identified and considered in formulating the opinion. The assessor should be cognizant of the fact that certain specific cognitive and/or neuropsychological tests have not been validated for remote admission, and hence would not be sufficient to constitute a comprehensive assessment. It is recommended that a disclaimer addressing the limitations of such testing should be added to the report.

Ruling Out Malingering

A high index of suspicion for malingering should be maintained. Malingered psychiatric conditions may be more common in medicolegal settings that commonly involve the avoidance of an unpleasant duty or requirements (eg, incarceration, military service, or when someone is seeking insurance or entitlement benefits) (6th ed [2022]).10

The DSM-58 defines malingering as follows:

The essential feature of malingering is the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as avoiding military duty, avoiding work, obtaining financial compensation, evading criminal prosecution, or obtaining drugs. Under some circumstances, malingering may represent adaptive behavior—for example, feigning illness while a captive of the enemy during wartime.

Other definitions of malingering, and methods assessing its presence, are also available. For example, malingering evaluation in the context of neurocognitive assessment has been specified,29-33 and a review of psychiatric approaches to malingering assessment can be found in the article by Walczyk et al.34 The examiner should consider the presence of malingering if the presentation occurs in a medicolegal context, if there is a pronounced discrepancy between the subjective and the objective findings, if there is a lack of cooperation, or in the presence of a personality disorder, or other indication of possibly insufficient or inconsistent effort. Further characteristics suggestive of the need to evaluate for malingering include overacting, symptoms and problems lacking detail, symptoms tending to be reported as more repetitious, struggling to answer when asked about coping strategies, and reporting constant bizarre symptoms of sudden onset (6th ed [2022], Table 14-6, Characteristics Suggestive of the Need to Evaluate for Malingering).10

Of note, it is within the purview of the assessor to ascribe the term malingering to the observed clinical scenario, but the examiner would have to be prepared to defend the use of the term when challenged in a subsequent hearing or regulatory body complaint. In our experience, such a challenge is disproportionately likely when using the term.

Applying the Updated Psychiatric Impairment Rating

The AMA Guides, Sixth Edition, forms the foundation for all updates of the AMA Guides, and future updates expanded on preceding changes (ie, AMA Guides, Sixth Edition [2022] builds on AMA Guides, Sixth Edition [2021]).35 Substantial changes have been made to the M&BD chapter of the AMA Guides, Sixth Edition (2021).35 The Global Assessment of Functioning (GAF) was eliminated from impairment rating methods outlined in Sections 14.5 and 14.6, and the methodology now utilizes only two rating (instead of previously three) scales: (1) the Brief Psychiatric Rating Scale (BPRS) and (2) the Psychiatric Impairment Rating Scale (PIRS).10

The mere presence of a psychiatric diagnosis offers limited information on the presence or quantification of impairment or disability. To determine the latter, additional information through assessment is required. The record review and the MSE, triangulated with the other sources of information and the history provided by the examinee, along with psychological testing, form the basis for offering an impairment rating.

Consistent with the AMA Guides (2008), Sixth Edition, some disorders are not ratable in Chapter 14, Mental and Behavioral Disorders, and examiners are referred to other chapters in the AMA Guides (2022).10 Impairment ratings in Chapter 14 of the AMA Guides (2022)10 are limited to a select list of diagnoses (mood disorders, including major depressive disorder and bipolar affective disorder; anxiety disorders, including generalized anxiety disorder, panic disorder; phobias; obsessive compulsive disorder; trauma- and stressor-related disorders, including posttraumatic stress disorder, acute stress disorder, and adjustment disorder; and psychotic disorders, including schizophrenia).10 The AMA Guides (2022) also notes that some disorders are not ratable in Chapter 14 (eg, psychiatric reaction to pain, substance intoxication and withdrawal, some sleep disorders, psychiatric manifestations of traumatic brain injury, dementia and delirium, and intellectual disability). The assessor should be aware that even if the mentioned disorders are not deemed ratable in the M&BD chapter (6th ed, Chapter 14), several of the listed conditions are in fact ratable elsewhere in the AMA Guides. For example, primary sleep disorders are rated in Chapter 13, The Central and Peripheral Nervous System. Furthermore, psychiatric reaction to pain is considered inherent to the rating for a physical condition, and not ratable in Chapter 14. Notwithstanding, even though some psychiatric disorders are deemed nonratable, some jurisdictions may require those to still be rated.

Finally, the AMA Guides note that when the M&BD is profound, the resultant impairment may be clearly evident. It further notes that if the disorder is subtler, the rating may be more difficult to assess and may be complicated by other factors. The current minimum standard for conducting an M&BD impairment rating is captured in The Guides Casebook (3rd ed), offering detailed step-by-step guidance.36

The Importance of Using the Most Recent M&BD Diagnostic Nomenclature

The DSM-5 is widely used source of information on the diagnosis of M&BDs. In March 2022, the DSM-5-TR9 was released, updating nomenclature and classification. Approximately 75% of disorders have seen significant revisions in the DSM-5-TR, some of which are significant. Although it was stated earlier that the DSM-5 was not developed for forensic purposes, it is commonly used in this context, and if used, the application of the most current edition would be expected. There are circumstances in which an earlier edition may be indicated, in addition to the latest version (eg, for SRDs in some arenas).

The examiner should take the necessary steps to follow current criteria and not to introduce idiosyncratic diagnoses. Similarly, the most recent versions of any included tests should be used, and unless specified by jurisdiction, the most current edition of the AMA Guides is recommended. Doing otherwise risks obfuscating the adjudication of claims.

Coherence Analysis and Level of Certainty

In formulating an opinion, a coherence analysis is recommended. This analysis includes an assessment of the elements (ie, the “seven C's”) of continuity, consistency, congruence, compliance, causation, comorbidity, and culture, to establish whether the data collected provides an integrated presentation, determining the degree of validity it carries.

The rendered opinion should be based on objective evidence and should be a fair, focused, comprehensive (within the scope of the mandate), objective, nonpartisan, unbiased, and well-reasoned, legally defensible, admissible opinion. The level of certainty required in the opinions rendered in an M&BD IME report is generally that of “reasonable medical certainty” or “on a balance of probabilities” (“weight of evidence” or “more likely than not,” also described as “chances greater than 50%”). Generally, there is no expectation to achieve a level of certainty that is beyond reasonable doubt in offering an opinion. However, an assessment of the likelihood of causation may differ depending on the jurisdiction and the setting, eg, in workers' compensation settings, where a relatively balanced likelihood or uncertainty exists, the worker is typically favored. It is incumbent on the examiner to be familiar with the requirements for the level of evidence of the specific jurisdiction and setting. For more detailed information on causation analyses in M&BDs, see Chapter 16 of the AMA Guides to the Evaluation of Disease and Injury Causation.14

Duty to Protect and the Duty to Warn

In keeping with professional standards, the examinee should be notified of important incidental findings discovered during the examination. When appropriate, and depending on urgency, the examiner should suggest the examinee seek care from a qualified health professional.

Even though it is infrequently encountered in IME practice, the risk of harm may be identified during an IME. The typical M&BD IME does not include the completion of an actuarial violence risk assessment tool,37 and the risk determination is based on the clinical impression and the judgment the IME provider. The usual risk to erosion of the PPR in a therapeutic context is not a salient consideration, but the legal risks to the examiner are not that different, ie, the liability risk of acting or of not acting (exercising the duty to protect and the duty to warn) should be considered.

The evaluator has to be familiar with their duty to protect and their duty to warn, which are two distinctly different determinations. If there is reasonable evidence that the examinee poses a risk of harm to self or others, the duty to protect may be triggered, with or without the duty to warn. When a person with an imminent substantial risk of harm to self or others has been identified, and depending on the mental health legislation or equivalent statutes in the particular jurisdiction, the person with a mental disorder who is threatening or posing a material risk may be involuntarily detained under the appropriate law. The duty to protect generally has broader implications than the duty to warn and includes actions that should reasonably ensure protecting potential victims. Unlike the duty to warn, the duty to protect may be exercised without breaching confidentiality.

It is incumbent upon the examiner to familiarize themselves with the pertinent case law in the jurisdiction where the IME is performed. In the Supreme Court of Canada case of Smith v Jones (1999),23 the issue was whether privilege should be maintained in a psychiatric report prepared by a psychiatrist at the request of the client's legal counsel (solicitor). The psychiatrist, during his interview with the accused, learned certain information that he believed would lead to further offences and thus harm to identifiable third parties. The psychiatrist sought a declaration from the court that he was entitled to disclose the information in the interests of public safety. The court ruled that the public safety exception to the solicitor-client privilege and physician-patient confidentiality released the psychiatrist from his duty of confidentiality and ruled that the psychiatrist was under a duty to disclose to the police and the Crown both statements made by the accused and the psychiatrist's opinion based upon them.

In Tarassoff v. Regents of the University of California (1976),38 the California Supreme Court held that a mental health provider has the obligation (ie, mandatory as opposed to a discretionary duty) to protect persons whom a patient may harm. In this matter, the level of dangerousness must outweigh protective privilege and confidentiality. Where the assessing professional identifies an acute health issue (eg, imminent, or substantial risk of harm to self or others as a result of a mental health condition), the professional has a duty to promptly notify the examinee and to address the emergency that arises out of the IME. Duty to report to any third party (eg, to a regulatory body in case of an impaired physician or an employer in case of imminent risk if the person is to return to work) is addressed on an individual basis and follows consultation with counsel or the examiner's liability insurance carrier. Consent is required for information to be shared with any other party, including other health professionals.

Concluding the M&BD IME and Compiling a Report

Prior to concluding the IME, it is of value to ask the examinee if there is any additional information that could assist the examiner in achieving a fulsome understanding of the issues at hand. This request should allow for open-ended discussion, with ample time for the examinee to verbalize additional relevant material. Allowance should be made for the deficits associated with M&BDs, which may suggest that sufficient time and support should be granted for this step.

The examinee is thanked for their time and cooperation and is reminded of the protocol for the next steps, ie, that the report will be sent directly to the retaining party and will not be copied to others including the examinee or to the examinee's treating health care professionals. Jurisdictional differences may exist, and the examiner should be familiar with such.

A postassessment satisfaction questionnaire can offer a mechanism of quality improvement. A generic example of such is available from the authors. Where the IME was mandated by the opposing counsel, or where it was particularly adversarial, it may not be appropriate to administer, or the examinee may decline to complete such.

A written confidential report reflecting the examiner's opinion is assembled, integrating all sources of information, including both the subjective and objective factual information gathered, into a single work product to be sent (digitally and/or in hard copy) to the retaining party. Any involved party may request a copy of hand-written notes taken during the IME, or psychological test raw data used in compiling the report. The examiner should take heed to ensure that the content of a report accurately mirrors the content of any hand-written notes. In compiling the IME report, the provider needs to restrict their opinion/response(s) to the questions posed by the retaining party. As stated, the report is based on reproducible methodology and provides a medicolegal document based on an analysis of the findings of the examiner. It is crucial to remember that the opinion should address only questions posed to the IME provider and should not include responses to questions not raised by the retaining party.

Responding to all the questions posed by the retaining party and only those questions is a good general rule. However, it is the experience of more than one of the authors that there are times when the retaining party asks a poorly worded or misguided question, and/or fails to ask a question that would allow for important input. In such circumstances, the recommendation is to contact the retaining party and raise the issue. In this way, the examiner will not tread into irrelevant or inappropriate territory but may also be able to better inform the retaining party of data that might otherwise have been missed.

The scientifically sound IME report is organized, complete, and comprehensive and one that relies on integrating all sources (including objective) information. Opinions rendered in the report should be based on a synthesis of the best information available rather than the examiner's personal belief systems. The central ethical obligation is to deliver a well-reasoned, independent, unbiased, fair, accurate, and honest opinion based on all available evidence. As referenced earlier, if the information required to formulate an opinion is missing, that should be explicitly stated.

Irrespective of the nature of the opinion rendered, reports should not appear insensitive to the subjective distress or any losses the examinee may have suffered. As an IME may be a component of an adversarial process, it is not uncommon for examinees to report feeling frustrated with the referral, the process, the examiner, or the handling of the claim or matter. Even if the examiner is met with a degree of disrespect (which may not be uncommon), the report should remain objective, dispassionate, and respectful; and the examiner should avoid using pejorative comments in the report, even if subtle. The examiner should be prepared to identify and address conflict in a professional and constructive manner, and a high degree of professionalism and skill may be required to manage frustrated examinees. Even if the examiner is not in agreement with the way in which a case has been handled, there is no room for advocacy of any kind or for any party in the IME report.

Although there may exist exceptions, the final element of the M&BD IME report is the examiner's original signature. The use of the term “dictated but not read” should be avoided as it potentially exposes the examiner to issues of credibility and reliability on cross-examination.

Finally, the work product should be submitted to the requesting party in the form of a written report. In some jurisdictions, the examinee is furnished a copy as well. All requests from treating health professionals to discuss the findings of the IME report should be directed to the requesting party.

Who Owns the M&BD IME Report?

The examinee has a general right to access their personal information. The examinee should be advised that, although the personal health information belongs to the examinee, the work product (ie, the M&BD IME report that is generated) is the property of the requesting party.

The examiner is required to retain all information collected in advance of and during the IME. Although there may be exceptions limiting the requirement of the examiner to produce information, examinees' right to access their own medical information usually includes all information collected during an IME. Typically, requests for a copy of the IME report should be made to the retaining party. However, in some jurisdictions there is a requirement for the IME report to be furnished directly to the examinee as well. Again, it is incumbent on the examiner to be familiar with the jurisdictional requirements and practices. However, if the examiner is asked to release information, it is strongly recommended the examiner first request consent from the retaining party. If requests are received for a copy of the full IME report, the recommendation is to liaise with the retaining party to ensure there is no objection to the release of information. Third-party information may have to be severed from the file in accordance with prevailing legislation in the particular jurisdiction. A nominal fee may be applied for the service of the release of information. As a result, when an examinee requests a copy of the IME, they should be referred to the retaining party.

Responding to Regulatory (State Medical Board/College) Complaints

The business of IMEs is associated with a disproportionately high risk of medicolegal complications for the examiner. Allegations of negligence or malpractice, resulting in regulatory body complaints, are not uncommon for IME providers. This can be especially time consuming (usually not billable time) and emotionally abrasive. Mobilization of adequate psychological support systems and time to address these is recommended. It is further recommended that the examiner ensures medicolegal protection coverage in advance and that legal counsel be retained should a complaint emerge. Dealing with complaints can represent a sizeable loss of income and become a substantial source of stress and frustration. Indemnification (if available) by the requesting or another party, should be explored in advance of conducting the IME and, if available, stipulated in the initial service agreement.

Conclusions

The IME is a specialized medical assessment conducted by a nontreating health care professional, with a specific mandate and focus and under widely varying and often complex circumstances. It differs materially from clinical care, and different rules apply.

Notwithstanding the mental health service gap and a traditional neglect of this field, the ever-increasing exposure to stress and trauma will likely result in an ongoing increased demand for M&BD IMEs. It is incumbent upon the provider to maintain a high degree of fidelity to best practices for M&BD IMEs. A salient obligation in the completion of these assessments is to assure the introduction of a sufficient degree of objectivity, notably in the form of completing validity testing. This article represents a summary of select IME principles and best practices and offers recommendations on how it should be applied to the M&BD IME setting.

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    Sherman EMS, Slick DJ, Iverson GL. Multidimensional malingering criteria for neuropsychological assessment: a 20-year update of the malingered neuropsychological dysfunction criteria. Arch Clin Neuropsychol. 2020;35(6):735764. doi: 10.1093/arclin/acaa019.

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    Rondinelli RD, Genovese E, Katz RT, Mayer TG, Mueller KL, Ranavaya MI, Brigham CR. AMA Guides to the Evaluation of Permanent Impairment, Sixth Edition (2021). doi: https://doi.org/10.1001/978-1-64016-212-9.

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    Tarasoff v. Regents of University of California, 17 Cal.3d 425. Supreme Court of California, July 1, 1976.

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    Rondinelli RD, Genovese E, Katz RT, Mayer TG, Mueller KL, Ranavaya MI, Brigham CR. AMA Guides to the Evaluation of Permanent Impairment, Sixth Edition (2022). doi: https://doi.org/10.1001/978-1-64016-212-9

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    Anfang SA, Wall BW. Psychiatric fitness for duty evaluations. Psychiatr Clin N Am. 2006;29:675693.

  • 12.

    Frances A, Widiger T. Psychiatric diagnosis: lessons from the DSM-IV past and cautions for the DSM-5 future. Annu Rev Clin Psychol. 2012;8:109130.

    • Search Google Scholar
    • Export Citation
  • 13.

    American Medical Association. AMA Code of Medical Ethics. Chapter 1: Opinions on Patient-Physician Relationships, section 1.2, Special Issues in Patient-Physician Relationships, 1.2.6, Work-Related and Independent Medical Examinations. Accessed August 5, 2022. https://www.ama-assn.org/system/files/code-of-medical-ethics-chapter-1.pdf.

    • Search Google Scholar
    • Export Citation
  • 14.

    Barth RJ, Kertay L, Steinberg JS. Mental illness. In: Melhorn JM, Talmage JB, Ackerman WE, et al. Guides to the Evaluation of Disease and Injury Causation. 2nd ed. American Medical Association; 2014: chapter 16.

    • Search Google Scholar
    • Export Citation
  • 15.

    Greenberg SA, Shuman DW. Irreconcilable conflict between therapeutic and forensic rules. Prof Psychol Res Pract. 1997;28(1):5057.

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    Greenberg SA, Shuman DW. When worlds collide: therapeutic and forensic roles. Prof Psychol Res Pract. 2007;38(2):129132.

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    Fair v. Allen, F.3d-2012, WL 335655. 5th Circuit, February 3, 2012.

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    Gold LH, Shuman DW. Evaluating Mental Health Disability in the Workplace – Model, Process, and Analysis. Springer; 2009.

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    Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision (DSM-IVTR). American Psychiatric Association; 2000.

    • Search Google Scholar
    • Export Citation
  • 20.

    Steinberg J. Working with common psychiatric problems. In: Talmage JB, Melhorn JM, Hyman MH. AMA Guides to the Evaluation of Work Ability and Return to Work. 2nd ed. American Medical Association; 2011: chapter 22.

    • Search Google Scholar
    • Export Citation
  • 21.

    Kusnetz S, Hutchison MK, eds. A Guide to the Work-Relatedness of Disease. US Department of Health, Education, and Welfare. Public Health Service, Center of Disease Control, National Institute for Occupational Safety and Health; 1979.

    • Search Google Scholar
    • Export Citation
  • 22.

    Herzog J, Schmahl C. Adverse childhood experiences and the consequences on neurobiological, psychosocial, and somatic conditions across the lifespan. Front Psychiatry. 2018; 9:420.

    • Search Google Scholar
    • Export Citation
  • 23.

    Smith v. Jones, 1999 CanLII 674 (SCC). 1999; 1 SCR 455.

  • 24.

    Barsky AJ. Forgetting, fabricating, and telescoping: the instability of the medical history. Arch Intern Med. 2002;162:981984.

  • 25.

    American Psychiatric Association. Practice Guidelines for The Evaluation of Adults, 3rd ed. The American Psychiatric Association (APA); 2016.

    • Search Google Scholar
    • Export Citation
  • 26.

    Swotinsky RB. The Medical Review Officer's Manual: MROCC Guide to Drug Testing, 6th ed. OEM Press; 2021.

  • 27.

    Bass C, Halligan P. Factitious disorders and malingering: challenges for clinical assessment and management. Lancet. 2014;383:14221432.

    • Search Google Scholar
    • Export Citation
  • 28.

    Committee on Psychological Testing, Including Validity Testing, for Social Security Administration Disability Determinations. Psychological Testing in the Service of Disability Determination. National Academies Press; 2015.

    • Search Google Scholar
    • Export Citation
  • 29.

    Larrabee GJ. Detection of malingering using atypical performance patterns on standard neuropsychological tests. Clin Neuropsychol. 2003;17(3):410425. doi: 10.1076/clin.17.3.410.18089.

    • Search Google Scholar
    • Export Citation
  • 30.

    Larrabee GJ. Exaggerated MMPI-2 symptom report in personal injury litigants with malingered neurocognitive deficit. Arch Clin Neuropsychol. 2003;18(6):673686.

    • Search Google Scholar
    • Export Citation
  • 31.

    Sherman EMS, Slick DJ, Iverson GL. Multidimensional malingering criteria for neuropsychological assessment: a 20-year update of the malingered neuropsychological dysfunction criteria. Arch Clin Neuropsychol. 2020;35(6):735764. doi: 10.1093/arclin/acaa019.

    • Search Google Scholar
    • Export Citation
  • 32.

    Slick DJ, Sherman EM, Iverson GL. Diagnostic criteria for malingered neurocognitive dysfunction: proposed standards for clinical practice and research. Clin Neuropsychol. 1999;13(4):545561. doi: 10.1076/1385-4046(199911)13:04;1-Y;FT545.

    • Search Google Scholar
    • Export Citation
  • 33.

    Tan JE, Slick DJ, Strauss E, et al.How'd they do it? malingering strategies on symptom validity tests. Clin Neuropsychol. 2002;16(4):495505.

    • Search Google Scholar
    • Export Citation
  • 34.

    Walczyk JJ, Sewell N, DiBenedetto MB. A review of approaches to detecting malingering in forensic contexts and promising cognitive load-inducing lie detection techniques. Front Psychiatry. 2018;9:700. doi: 10.3389/fpsyt.2018.00700.

    • Search Google Scholar
    • Export Citation
  • 35.

    Rondinelli RD, Genovese E, Katz RT, Mayer TG, Mueller KL, Ranavaya MI, Brigham CR. AMA Guides to the Evaluation of Permanent Impairment, Sixth Edition (2021). doi: https://doi.org/10.1001/978-1-64016-212-9.

    • Search Google Scholar
    • Export Citation
  • 36.

    Brigham CR. Mental and behavior disorders. In: The Guides Casebook, 3rd ed. American Medical Association; 2009.

  • 37.

    Douglas KS, Hart SD, Webster CD, et al. Historical-Clinical-Risk Management-20, version 3 (HCR-20V3). International Association of Forensic Mental Health Services; 2013. doi: 10.1080/14999013.2014.906519.

    • Search Google Scholar
    • Export Citation
  • 38.

    Tarasoff v. Regents of University of California, 17 Cal.3d 425. Supreme Court of California, July 1, 1976.

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