Fitness for Duty Psychiatric Examinations are conducted by a psychiatrist trained and experienced specifically to conduct a Fitness for Duty, to assess if an employee is mentally fit to perform the essential functions of the job.
The following is adapted from a transcribed spoken presentation to Kaiser Permanente’s In-House Counsel about Fitness for Duty. I believe the content is useful for any understanding of Fitness for Duty Psychiatric Examinations; see also my article on this topic on this site Fitness for Duty and/or Threat Assessment, and my article specifically about one possible secondary outcome: allegation of wrongful termination in employment litigation.
I am a physician first and foremost. My specialty is psychiatry. When I was a psychiatrist in the U.S. Army I was assigned as a forensic psychiatrist to the Fifth U.S. Army Headquarters/ JAG (Judge Advocate General), which I told them was nonsense because I knew nothing about forensic psychiatry. The Surgeon of the 5th Army responded that that has never stopped the army before. It was fascinating and I decided to make it part of my career. I was also the acting Chief of Physical Standards for Fifth US Army and my office was responsible for reviewing all the medical records of people for enlistment, retention or promotion to General Officer. I also personally reviewed the medical files of 8,000 army physicians entering active duty. When I finished the army and my residency, I took another year of training at Boalt Hall (the law school at U.C. Berkeley) to study in a special program to learn the law as it related to psychiatry.
At Boalt, I worked with perhaps the most preeminent forensic psychiatrists in the country, Dr. Bernard Diamond, who mentored me then and for a number of years after I entered practice so I was really fortunate.
From the beginning of my practice, I have devoted at least half of my attention to matters regarding law and psychiatry: criminal law, civil law, and administrative law. I have collaborated with my colleagues specializing in both fitness for duty and threat assessments, risk for violence in the workplace: the clinical assessments of potentially dangerous employees.
I have done over a 1000 fitness for duty exams and that is a good number. That comes to about 30 cases a year. I have also evaluated a number of murder cases. I have seen a lot of violent people who have already been violent and obtained their histories, probably about 200 of those, and a lot of civil cases involving employment law. I have been cross-examined in deposition probably more than 700 times and I have testified in open court about 150 times. I also treat patients, always have, and presently I am working as a volunteer psychiatrist for Hospice By the Bay where I see their patients as they need.
Why is a fitness for duty performed? is a common question I am asked, by both employers and employees. I have gone into this question in greater depth on this website in my articles, FAQ and expert areas.
I would like to talk about informed consent because it is an important issue in fitness for duty exams. There is a governing case in Northern California in the First District called Pettis vs. Cole and in the Pettis vs. Cole case, Dr. Cole was a defendant in the case. He is a psychiatrist and he did a psychiatric fitness for duty exam. The court on appeal found Dr. Cole had made a substantive error in the way he conducted his exam because he had not obtained the proper consent to do the exam. What Dr. Cole did was widely accepted in those days, and I was doing it also; you got a verbal consent from the patient or the examinee and it would be explained to the examinee what the exam was about and what you are going to be doing and you would then make a note in your report that you had obtained the person’s informed consent. The American Medical Association more or less endorsed that approach also on fitness for duties versus let us say surgical procedures, which required written consent. The First District said this was insufficient consent for a number of reasons. One reason is that in the California Constitution there is a right to privacy and it is necessary for the person who is being examined to acknowledge in writing a waiver of their right to privacy; if you do not get that waiver then it is presumed that the right to privacy remains and the psychiatrist you cannot inquire into personal information without their consent. The second issue is that the person has to acknowledge that there is going to be a possible impact on their job from the exam and the psychiatrist has to obtain that in writing and you also have to define the scope of the exam, what you will be talking about. That is the first signature. You need a second signature: the second signature in Pettis is that the person who is consenting to the exam now gives separate consent for you to send a written report to the referring party. So you really need two signatures according to Pettis and I have not read anything since then that indicates otherwise.
I was working with Littler Mendelson on a case at the time of Pettis and Steve White and I were also working on some cases with them and we put together a consent form that they felt was okay so I felt comfortable with it. They read Pettis and they said two signatures. So that is what I have gotten ever since. It is important whenever you send a person for a fitness for duty examination anywhere that they give their consent in advance of the exam with the scope of the exam and permission to communicate back what the findings are. I find that it is better to get the written consent in advance for the reason that I have had the occasion that people are very mixed about coming for the fitness for duty psychiatric exam in the first place and then are presented with my consent form and they say, “Oh! I don’t want to do that. I’m going to go and talk to my union, my lawyer, and everyone else right now,” and so now I have had a cancellation that I have to charge the client for and I do not like that. I do not like to be paid for work I do not do. So, I think getting the consent form in advance really gets that over and done with. One of the other things that your physicians should remember, whoever is doing the exam, that the consent can be withdrawn at any time during the exam and the physician has to stop the exam at that point. You cannot say, “look you consented to it. We are in the middle of the exam, you can’t stop.” Wrong. You can. You can always withdraw consent. So if the person does not like the way it is going, they can always walk and I have had that happen. So, you do not want whoever you are referring the person to for the fitness for duty exam to not know that. It can be dicey.
What is on a fitness for duty exam? In Pettis v. Cole, one of the other things that the court required was that any inquiry made by the physician has to be relevant to the fitness for duty of the employee because the employee’s waiver of their privacy, although it is acknowledged, it is still not something they would usually choose to do. So you have to keep the inquiry relevant to the purpose of the exam. I am usually, as a psychiatrist, looking at stressors in people’s lives and the stressors in terms of fitness for duty may include work-related or non work related matters. I feel at least, as the inquiry goes, I can talk about or inquire about non employment related stressors if they may be creating an ability not to be able to work. I do not necessarily report those stressors. I keep those to myself and that is something else that is worth telling your evaluators. They do not have to report everything they get.
I have had the occasion where I write a one- or two-page report but I have had ten pages of written notes. I have a duty to make a full inquiry that is relevant to the exam but I do not have a duty necessarily to report information that I ultimately determine is irrelevant to the exam. I think you shouldn’t receive a fitness for duty report that has a lot of irrelevancy in it. It would be appropriate for you to go back to the doctor and say, “look! You know that might be relevant to what you are doing but ultimately it is not relevant to the task at hand and this information does not belong in our charts, it belongs in your chart and thanks for doing such a good job but we don’t need to know all of this.” However, if there is ever a procedural complaint or a lawsuit and the person is going to claim that the doctor did not do a good enough exam to derive his opinion then the doctor’s full notes will see the light of day and the full extent of the inquiry will become apparent to all the parties. That protects both the doctor and the employer because a good exam has been done. I have a general outline that I follow and I think most people follow it and it is always about relevance. I get a history of the present difficulties. I find out whether the person is worried about their children, spouse, or significant other and whether they are having any financial problems that may be causing them a lot of distress and interfering with their job. I may not usually report that information in my reports but I am looking for stressors. I will get some occupational history, particularly how they are getting along with others at the workplace and how it may be impacting the reason they are seeing me. I want to find out about their current medical condition because sometimes medical conditions can influence a person’s psychological state of mind. If a person is hypothyroid, that can affect them. If they are poorly controlled diabetics, that can affect them. I am looking at the whole person because that is the person I have to ultimately clear. I look at litigiousness not only in terms of (clinical) paranoia, and I sometimes have very litigious paranoids who I have seen who create problems at the workplace interpersonally. A litigious person can be involved in an interpersonal administrative problem, but sometimes I have been asked to take someone off of work for psychiatric reasons when really what is going on is that the employer does not like the person because they are suing them right and left for EEO complaints and the person does not work. It is not my job to take that into consideration. For example, I take a drug and alcohol history because I have to. I also look for other stressors in the person’s life vis-à-vis their ability to do their job. I may or may not find a psychiatric condition. It may or may not contribute to conflict at work.
For example, lets say a woman is being stalked by her husband. That is not an industrial matter but I know from my work that stalking has other downsides. I may be the first person who gets that history and I probably have the duty to the person who is referring me the case to give them a heads up, because there is something wrong here. There is an inherent danger in that situation, for the woman being stalked and for the employer who may find the stalker and/or the stalker’s behavior a workplace issue.
I review and I like to have all of the medical records and employment records that are available to review and all of the investigative records including written complaints. I never report them in my report and I think that is a very good policy. I am going to talk about HIPAA in a little bit which you did not touch on earlier but I think it has to be talked about. I do a mental status exam and when I write a report, I try to make it as brief as possible including relevancies, excluding irrelevancies, and get down to the basic questions; is the person fit, do they need an accommodation, and if they are taking any medications are the medications going to affect their ability to perform their job. I am sometimes asked prognosis on fitness for duties. I am sometimes asked whether or not a person returning to work ought to be required to continue in psychotherapy. Making continued treatment a condition of being able to return to work is an interesting question, and the law has been evolving on that. I am not sure I am allowed an opinion about that question anymore. It may be too intrusive, but in the past it has been asked and, I might add, answered by me.
My objective in the exam is to determine the present state of psychiatric functioning, looking at any recent past disability, and the employee’s present ability to perform the essential functions of the job. That means I have to have a job description so I have to be able to look at the job descriptions in order to look at what the person can do and not do. I look at what is a reasonable accommodation because sometimes people I see are asking for accommodations which are not reasonable accommodations, and they do not even reflect disability. Usually, this is an employee who comes to me and says I cannot work for my supervisor. All my supervisor does is criticize me and I want to be transferred. That is the accommodation I want and I say “could you do your job if you were transferred?” and the employee says “yes, I could do it without any difficulty at all. All I need is the transfer. That is my disability.” They are not disabled. They can do the essential function of their job on the job and their request is an administrative problem, so I say, “thank you very much.” But sometimes you will get doctors who are treating the person who do not know what the guidelines are and they will make a medical prescription of transferring a person and I shake my head. So I write a report and I will usually also make a phone call to the referring party. Depending on the circumstances, legal input is required.
Next the subject is HIPAA. You all know what HIPAA is and I do not have to explain it. In fitness for dutyexams, unless there is a compelling psychiatric reason where reading the report would injure the employee, the employee has a right to a copy of my report.
Psychological testing is a common part of fitness for duty exams and I generally only do an MMPI-2 as my primary psychological test. My reason is that most of the other tests for personality issues are face obvious or they do not have good validity scales. The MMPI-2 is the only test that has really good validity scales and is not face obvious. The MMPI-2 is the most widely given widely researched psychological test in the world. It tells you probably everything you need to know about fitness for duty including the person’s level of cooperation. The MCMI-III has been argued in a number of venues that it does not pass what is called the Daubert test, which is that there is scientific validity in the test and there have been courts that have not accepted the Millon Multiaxial Clinical Inventory. For example, there are only three questions on the MCMI-III that contribute to its validity scale and that is a very weak validity scale. On the other hand, the MMPI-2 has on one Scale alone 67 questions that go to the validity of the test. There are other validity scales, too. The Beck Depression Inventory or the Zung Depression Inventory or the Anxiety Inventories are all face obvious. If a person wants to come back to work and they do not deserve to be back at work, it is really easy to beat those tests. It is not as easy on the MMPI.
Neuropsychological testing is another matter. If a person has had a stroke or some brain injury and then they are wanting to come back to work at a later time, the neuropsychological testing is pretty reliable depending on which of the modalities were not working for a while, so expect to see a battery of neuropsychological tests. I have also used a third group of tests which are called “forced-choice tests” and these have to do when people are complaining to me that their mental state is so disturbed that their memory is impaired and that they cannot organize themselves, and they are trying to stay off of work usually on a long-term disability issue. Sometimes these complaints are related to another lawsuit that is pending going on such as an EEO suit and they are trying to stay off work even though there is a question about whether or not they are fit for duty. There are two good test ideas, which is the test of memory, malingering, and the variable indicator profile. The statistics on these two tests are good and they have been accepted in many courtsOne of the reasons I give MMPI-2s to most of the people I see is because they have validity scales. The validity scales measure intentional or unintentional distortion. Malingering is when a person is intentionally lying in order to achieve a desired outcome. Sometimes the term “secondary gain” is used but that is a misnomer. Secondary gain to a psychiatrist is an unconscious process and it has to do with an unconscious unintentional desire to get a particular outcome, such as a dependent person staying sickly so that other people will take care of them. Attorneys generally use the term “secondary gain” to mean intentional distortions, but in the psychiatric literature it is unintentional and unconscious. I use a fourth test sometimes with chronic pain patients who may have a psychological overlay and that is the McGill Pain Inventory. The McGill is a large test. In the McGill, there are 76 descriptors of pain which are separated into 22 categories. It is an easy test to administer. I read each descriptor in each category, one category at a time. The person picks out the word that best describes their pain and if none of the words describe their pain, then they say nothing does. There are good norms on the test For 15 years, I taught about chronic pain and disability at UCSF to the orthopedists in the Back Clinic, so I was an Assistant Clinical Professor of Orthopedic Surgery. I did a lot of work with the evaluation of chronic pain and helped the residents and medical students. I think some of the faculty learned some more about chronic pain.
I just wanted to emphasize the difference between a fitness for duty exam and a risk of violence assessment. They are different although sometimes they begin to look like they are overlapping, but the fitness for duty is whether or not the person who you are examining is able to do the essential functions of their job. In the risk of violence assessment, you are not looking at the person’s ability to do the essential functions of their job. You are looking at their dangerousness and that has nothing to do with their job description. Dangerous is dangerous and that is a different category. It is kind of a first cousin of a fitness for duty exam. I have done many-many risk assessments, 100s, all over the country actually, but they are different than fitness for duty and whoever you are consulting with has to know that. It is just an important distinction to keep in mind. I think Dr. White gave a long talk on risk of violence assessment, and I have not been asked to do that. I just will mention a couple of things about that and then let it go. There are two ways to approach the assessment of dangerousness; one is clinical and the other is actuarial. The clinical approach has to do with the clinical examination of the individual and whether or not that individual is suffering from psychiatric pathology which is associated with violent behavior.
There are number of clinical entities that are associated with violent behavior but the presence of the clinical entity only establish risk for it. You cannot conclude with medical probability that that particular person is going to be violent in the future. Antisocial Personality Disorders are at the top of the list for future violence. Borderline personality disorders are a close second. Paranoid Schizophrenia with command hallucinations are right near the top. Other schizophrenia interestingly is not associated with an increased risk of violence. The MacArthur study on violence showed that. Bipolar Disorder sometimes contributes to dangerousness at the workplace because when the person is so manic that they are not exercising good judgment, people see this as them acting in a dangerous way, but it is really a function of their mania.
Actuarially, you are looking at matters such as a past history of violence being the best predictor of future violence; ongoing drug and alcohol abuse is a good predictor; stalking behavior is a good predictor; and there are others.
There are three instruments I have used for doing risk of violence assessment; one is the instrument that Dr. White and Dr. Meloy created a couple of years ago, the WAVR 21; the second is the HCR-20 which was done by Dr. Webster and his associates at University of British Columbia and it is similar to the instrument Dr. White did, and the third one is the Hare PCL which is an instrument for diagnosing Antisocial Personality Disorders. Since antisocial personality disorders are highly correlated with future violence, it is good to know who you are dealing with. No one can predict violence in an individual; all you can predict is their risk factors for it and so the prediction of violence in terms of what is usually a rare event (violence) has shifted over the years to an examination of the risk factors that the person has and how much riskiness they possess. This is probably the best we can do at the state-of-the-art now. I looked at what happened with Dr. Hassan in Fort Hood and I do not know anyone could have predicted what he did based upon his prior reported behavior. He was acting strangely but there are a lot of ultra religious people who become ultra religious in a short period of time. It does not predict murder but he would have been, in my book, at higher risk.
Presentation by Stephen M. Raffle, M.D.
Fitness for Duty Psychiatric Examinations, Kaiser Permanente, Presented to Employee/Labor Relations Consultants and Disability Managers for Northern California
