Areas of Practice
INDEPENDENT PSYCHIATRIC EVALUATIONS (IPE)
Independent psychiatric evaluations include a thorough examination of records, testing, and interviewing. Typical reasons for an Independent Medical/Psychiatric Examination include mental health injury cause and extent, appropriateness and additional options for treatment, and whether maximum benefit of treatment has been reached, determination of duration of temporary or short term impairment/disability and whether mental health impairment is permanent. Other reasons for IME (Independent Medical Evaluation) include current clinical status/severity and fitness for duty.
Minnesota Multiphasic Personality Inventory (MMPI) is typically a part of the Independent Medical/Psychiatric Evaluation. There are several versions of this standardized psychometric test that is composed of hundreds of True-False questions. The test typically takes between one and two hours to complete and validates mental health issues. However, diagnoses are not made solely on the results of the test.
MEDICAL PEER REVIEW
The purpose of a MPR is to review the medical documents and to determine if mental illness is present, determine impairment, relationship to a possible injury, and review appropriateness of medical treatment. In addition to the review, a consultation with the treating provider may be appropriate. MPRs may be used to questions of standard of care. There are times when an MPR may be associated with significant cost savings
MPRs may result in cost savings to health care payers and benefit to health care treatment receivers if treatment is optimized.
Medical Peer Reviews are typically conducted when face-to-face Independent Medical/Psychiatric Examination is not possible.
WORKERS' COMPENSATION EVALUATIONS
Workers’ compensation is a form of insurance that provides medical treatment, vocational rehabilitation and wage replacement to employees injured at work.
Workers' compensation law mandates that employers provide their employees with workers’ compensation insurance so if an employee is hurt on the job they get the benefits needed without having to prove who is at fault. In exchange, the employee gives up the right to sue their employer for pain and suffering awards.
Workers' compensation benefits include coverage of medical bills related to the on-the-job injury, replacement of lost wages related to the work-place injury, and compensation for permanent impairments related to the industrial injury.
Workers' Compensation Independent Psychiatric Evaluations
A psychiatrist may be asked to either complete an Independent Psychiatric Evaluation or to provide treatment to a patient through the Workers' Compensation.
During an Independent Psychiatric Evaluation a psychiatrist is typically asked to answer a number of questions about the claimant, including:
- If a claimant has a psychiatric problem;
- If the industrial injury is a direct cause of the psychiatric problem;
- If the psychiatric problem is causing impairment in functioning, restrictions and limitations;
- Determine if the psychiatric problem is stationary and if the claimant reached the Maximum Medical Improvement;
- Determine the impairment rating based on the AMA criteria;
- Determine if the claimant is in need for ongoing mental health care or supportive mental health care;
- Outline the standard of care and best practices care for the psychiatric problem.
These evaluations typically last two to three hours and include psychological tests such as MMPI in order to validate subjective presentations and to confirm the diagnoses.
WORKERS' COMPENSATION TREATMENT
A psychiatrist may be asked to provide care to a patient who is already on Workers’ Compensation. In this cases a Worker's Compensation Claim Adjuster approves mental health treatment and dictates (typically based on an IME or by the order of an Industrial Judge) the type of treatment and number of sessions. The psychiatrist is paid based on the approved Arizona Worker's Compensation fee schedule by the Insurance Carrier.
Here is a link to the Industrial Commission of Arizona (http://www.ica.state.az.us/).
Dr. Segal has a clinical practice and provides psychiatric treatment, medication management with psychotherapy, for people on Workers' Compensation.
Some Workers' Compensation Insurance Carriers are easier to work with than others. Carriers and adjusters are typically accepted based on their flexibility, responsiveness, and timeliness with reimbursement.
PSYCHIATRIC IMPAIRMENT AND DISABILITY
Questions of psychiatric impairment arise in different circumstances including personal injury, workman’s compensation, or short term (STD) and long term disability (LTD), social security disability (SSDI), and workplace accommodation.
About 20% of Americans are affected by a mental disorder. It is estimated that about 30% of individuals who report having a mental disability are employed. There are times when psychiatric symptoms are exacerbated and may cause people impairment in work functioning. Data suggests that mental illness may be the second most frequently reported cause of limitations of activities, surpassed only by musculoskeletal conditions. Studies suggest that neuropsychiatric disorders may be responsible for 30% of disability worldwide and rising rapidly.
Psychiatric impairment/disability evaluations may be requested by an employer, employee, or third parties (disability case managing companies or attorneys).
Disability is a legal concept that is defined by law and insurance policies, depending on the situation. A psychiatric disability is a state of activity limitation or participation restrictions. The American Disability Act defines disability as “physical or mental impairment that substantially limits a major life activity.” Because disability is defined differently by alternate entities, the evaluating psychiatrist has to be familiar with the definition and have the ability to translate that definition relevantly according to the specific context. For example, Social Security Act defines disability as “the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” Definition of private disability policies is variable in terms of coverage amount, duration and basic definition. These may define disability as inability to perform an employee’s present job, present occupation, or any occupation.
A psychiatric impairment is a diminished or weakened state as a result of a psychiatric disorder. The American Disability Act (ADA) defines Mental Impairment as “any mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.” The World Health Organization (WHO) defines impairment as, “a problem in body function or structure such as a significant deviation or loss.”
In summary, impairment is a symptom or a problem, and disability is how that symptom is preventing that person from doing things. These terms are often used interchangeably. A medical evaluator determines impairment, and disability is ultimately an administrative or a legal decision that is typically made by a court, a government agency, or an insurance company panel.
There are a number of psychiatric symptoms that may impair an individual, such as anxiety, mood swings, depression, lock of focus and concentration, memory problems, or problems with thinking.
As a result of these psychiatric symptoms, a person may have impairments, such as inability to stay on task, being unreliable and unable to complete tasks in a timely manner, inability to tolerate redirection by supervisors, get along with coworkers or customers, tolerate job pressures, or resolve conflicts.
Because of these impairments, a person may require restrictions from doing certain tasks in a certain way. For example, an employee may be restricted to working from 9am to 2pm, or having a 15 minute break every two hours, or being restricted to work from home.
Individuals with psychiatric impairments may also have limitations, or things they should not do. For example, an employee cannot work night shifts, or drive a vehicle.
Based on the restrictions and limitations, an evaluator may also be asked to recommend accommodations. These may include additional time to complete assigned tasks, having distraction-free work area, modified seating arrangements in a workplace, allowing extension time to complete projects, flexibility in the attendance requirements in case of health related absences, work from home during part of the day or week, flexible scheduling, longer or more frequent work breaks, additional time to learn new responsibilities, specific written short and long term goals and instructions, open channel of communication, regular meetings, more frequent praise and positive reinforcement, use of organizers , reminders and checklists.
Typical questions that are asked for the Psychiatric Impairment Evaluation:
- Describe all psychiatric diagnoses that are clinically supported.
- Provide a discussion of the current standard of care and best practices for this condition, including treatment modalities, frequency of treatment, duration, and expected outcome.
- Does the individual have impairments attributed to the presence of mental illness that would preclude him/her from carrying out their usual life activities, including work related activities? Please discuss any cognitive and social impairment that are supported.
- Please define the restrictions and limitations that are reasonably supported and their timeframe.
- Is the insured restricted or limited from performing activities of their own occupation in a different environment, such as with a different employer, supervisor or location?
- Are there non-medical barriers that are contributing to the claimant’s impairment in functioning?
Fitness- for-duty evaluation occur when an employer becomes concerned about an employee’s ability to perform their duties at work. An employer may request such an evaluation to determine if the employee is able to perform essential job functions because of a medical or a psychiatric condition. A similar type of evaluation may be requested in order to assess an employee’s ability to return to work after time away. For example, an employer may request a fitness-for-duty evaluation in response to disruptive behavior of an employee in the workplace or because of concerns regarding the potential for violent behavior or the ability operate equipment safely.
The presence of a psychiatric illness or diagnosis does not necessarily indicate that an individual is unfit for duty, or psychiatrically impaired. Depending on the severity of symptoms, an employee with a psychiatric disorder may or may not have problems with work place performance.
Psychiatric disorders are not as easily delineated as physical impairments. For example, a person with a broken arm is clearly impaired from driving a school bus. However, a person with generalized anxiety disorder may or may not be impaired from doing the same job.
General essential factors of being fit for duty are employee’s ability to concentrate on the work tasks, be productive, reliable, and motivated. An employee is required to have working interpersonal functioning, have the ability to interact with supervisors, coworkers and customers.
Some jobs, such as law enforcement, deal directly with public safety. Other jobs do not require employees to handle firearms, but require ability to handle stress, concentrate on the job, be productive and effective with customers and other employees.
Human Resource Department managers may rely on the medical records from the employee’s therapist or a psychiatrist. However, treating providers are biased to provide care in the best interest of their patients, and typically their focus is not on patient’s functional ability or limitation, but on their clinical symptoms. Treating providers base their opinion primarily on the subjective report of their patient; they might not have the time to review collateral information that may be relevant to the employee’s functional analysis, but not as important for the clinical treatment. There also may be a caveat of secondary gain, symptom minimization, symptom exaggeration, or treatment avoidance. Treating clinicians may find it impossible to move from the therapeutic to the forensic role in such evaluations.
As an independent psychiatrist, I review the employee’s social history including past and current school and work history, including prior failures and successes, disability claims, work discipline actions, and current job description and reasons for the fitness for duty request. I consider past and current mental health and medical records. In addition to a full psychiatric assessment that includes review of psychiatric symptoms, mental status and cognitive evaluation, I require a completion of MMPI-2 in order to objectify the findings and determine validity of the clinical interview.
Typical questions that are asked for the Fitness-for-Duty evaluation:
- Does the employee have a psychiatric condition?
- Does the employee have restrictions or limitations that would interfere with his or her ability to perform the essential functions of his or her job?
- What specific tasks may the employee not be able to complete?
- Are there accommodations that the employer might make to allow the employee to perform the essential job functions?
- Does the employee present a significant risk of harm to self or others?
- Does the current treatment meet the standard of care? Are there additional treatments that the employee may consider?
- Does the employee need time off work? What is the reason for time off work? Does the time off work need to be continuous or intermittent? What is the duration of leave?
I-601 Application for Waiver on Grounds of Inadmissibility:
Legal advice regarding I-601 Application for Waiver on Grounds of Inadmissibility should be obtained from an attorney. Below is my understanding based on my discussions with immigration attorneys, lectures, articles, and evaluations that I have done over the years. This should not be considered medical or legal advice.
Under the Immigration and Nationality Act of 1996 are provisions for the I-601 Application for Waiver on Grounds of Inadmissibility. I-601 provisions allow the argument of “Extreme Hardship” that may befall on the United States citizen or lawful resident who is a “qualifying relative” of the person (i.e. Alien) who may be denied admission to the United States.
“Qualifying relative” may be Alien’s spouse, parent, child or a fiancée. It is important that the qualifying relative is a U.S. citizen or a lawful resident of the United States.
“Extreme hardship” is greater than the normal hardship that a qualifying relative may experience if the Alien is denied admission to the United States. Although that is a high standard, it is not as high as other standards in the immigration law, including extraordinary and extremely unusual. An immigration Judge or an adjudicator makes the final decision if the hardship is extreme. Therefore, if extreme hardship exists, it is important to present persuasive and a compelling argument that supports it.
An independent psychiatric assessment may be necessary for an in-depth determination of the mental and medical aspects of the extreme hardship.
Important aspects that are considered include the qualifying relative’s psychiatric/medical conditions and interpersonal relationships that may prevent them from moving out of the country with the person who may be denied admission.
For example, it is quite compelling if the qualifying relative has significant medical problems and not only has to continue ongoing treatment with established providers, but is also physically and emotionally dependent on the Alien in order to continue such care. Therefore, an in-depth analysis of psychiatric and medical issues is quite important.
Another example that is compelling is if the relative has parents who are elderly and dependent on the alien for financial, emotional or physical care. Along the same line of thought, it is very persuasive if the qualifying relative has minor children from a previous relationship, and has shared legal custody, and cannot remove the children from United States. Therefore, the qualifying relative cannot move out of the county with the Alien if admission to the United States is denied. Family tree are very important in determining how families are bound together and how inadmissibility may tear the familial interconnection apart and possibly cause extreme hardship.
Psychosocial aspects are paramount in any psychiatric assessment. Therefore, it is important to consider what the qualifying relative does for a living, their financial state, and if the relative moved out of the United States to the Alien’s country would they be put in harm’s way. For example, important consideration is if the Alien’s country is at war then extreme hardship may befall onto the qualifying relative. Extreme hardship may also transpire if the qualifying relative is of a religion that is discriminated against in the Alien’s county. If the qualifying relative has a well-paying job that supports other family members and the likelihood of the relative of finding the same work in Alien’s country is unlikely, that may be a cause of extreme hardship.
Once the evaluation is done, and collateral documents are considered, a report is formulated outlining what extreme hardships may befall on the qualified relatives. The report is submitted to the attorney who includes necessary letters, forms, and supporting documents and submits these to the U.S. Citizenship and Immigration Services.
Here is a link to U.S. Citizenship and Immigration Services definition of Extreme hardship and a list of items to consider:
Testamentary capacity refers to the legal status of being capable of executing a will. The two fundamental components are an ability to understand the relevant facts and an appreciation of the consequences of taking or not taking specific actions.
Testamentary capacity is task and situation specific. It is possible for an individual to possess general testamentary capacity, but suffer from a delusion that invalidates the will. On the other hand, it is also possible for an individual to have a mental illness but have the capability of execution of his will (Banks v. Goodfellow).
Attention is paid to disorders that may affect cognition, judgment, impulsivity or reality testing. Undue influence must also be evaluated.
The presumption is typically that individuals possess autonomy and individual freedom with respect to distribution of their assets, and enough evidence must be collected to debunk the presumption.
Banks v. Goodfellow Test:
- What is the nature and effect of making a will?
- What is the extent of the estate?
- Who might expect to benefit from the testator’s will (those included and excluded from the will) ?
- Does or did the testator suffer from mental illness or dementia?
- Were there previous wills? How are they different and why?
- Why are potential beneficiaries are included or excluded?
- Do you need a second opinion?
Arizona Revised Statues (ARS 14-5101) define an “incapacitated person” as any person who is impaired by reason of mental illness, mental deficiency, mental disorder, physical illness or disability, chronic use of drugs, chronic intoxication or other cause, except minority, to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person.
This means that an individual who is ill may not be able to conduct their daily life affairs and may need someone (i.e. a guardian) to help them. Any person interested in welfare of the incapacitated person my petition for the appointment of a guardian. Once the petition is filed, the court will set a hearing to determine if the person is indeed incapacitated. The court will make sure that the alleged incapacitated person has an attorney, and is interviewed by a court appointed investigator and examined by a physician, psychologist or a registered nurse.
Further ARS 14-5303 outlines the court procedures and what the evaluating physician should include in the report to the court:
- A specific description of the physical, psychiatric or psychological diagnosis of the person.
- A comprehensive assessment listing any functional impairments of the alleged incapacitated person and an explanation of how and to what extent these functional impairments may prevent that person from receiving or evaluating information in making decisions or in communicating informed decisions regarding that person.
- An analysis of the tasks of daily living the alleged incapacitated person is capable of performing without direction or with minimal direction.
- A list of all medications the alleged incapacitated person is receiving, the dosage of the medications and a description of the effects each medication has on the person's behavior to the best of the declarant's knowledge.
- A prognosis for improvement in the alleged incapacitated person's condition and a recommendation for the most appropriate rehabilitation plan or care plan.
- Other information the physician, psychologist or registered nurse deems appropriate.
Any qualified person may be appointed to be a guardian. However, ARS 14-5311 prioritizes the order of consideration:
- A guardian that was appointed by another jurisdiction,
- An individual or corporation that is nominated by the incapacitated person, if the incapacitated person has sufficient mental capacity to make an intelligent choice,
- The person nominated in a durable power of attorney or health care power of attorney,
- The spouse of the incapacitated person,
- An adult child of the incapacitated person,
- A parent of the incapacitated person, including a person nominated by will or other writing signed by a deceased parent,
- Any relative with whom the incapacitated personal resided for more than six months before the petition,
- The nominee of a person who is caring for the incapacitated person,
- If the incapacitated person is a veteran, then department of veteran’s services,
- Or a licensed public fiduciary.
ARS 14-5312 outlines the powers/responsibilities of a court appointed guardian. A guardian of an incapacitated person (a.k.a. ward) has the same powers, rights and duties respecting the guardian's ward that a parent has respecting the parent's unemancipated minor child, except that a guardian is not liable to third persons for acts of the ward solely by reason of the guardianship. Therefore, the guardian may decide on the ward’s housing, food and clothes, healthcare, and education. If a conservator is not appointment, then the guardian may receive and apply the ward’s money and property for support, care and education of the ward. If a conservator is appointed by the court, then the conservator manages the ward’s estate.
Competency to Stand Trial
Arizona Revised Statute (A.R.S. § 13-4501) defines an individual who is incompetent to stand trial as a defendant who as a result of a mental illness, defect or disability is unable to understand the nature and object of the proceeding or to assist in the defendant's defense. In the case of a person under eighteen years of age when the issue of competency is raised, incompetent to stand trial also means a person who does not have sufficient present ability to consult with the person's lawyer with a reasonable degree of rational understanding or who does not have a rational and factual understanding of the proceedings against the person. The presence of a mental illness, defect or disability alone is not grounds for finding a defendant incompetent to stand trial.
The question of competency may be raised by the defense attorney, prosecuting attorney or the court. The court may request that a mental health expert assist the court in determining if reasonable grounds exist for examining a defendant. Competency hearings are exclusive jurisdiction of the superior court. The court may appoint two or more mental health experts to examine the defendant, issue a report and possibly testify. Any party may retain its own expert to conduct the examinations at its own expense.
Competency evaluations may be done while the defendant is in-custody or out-of-custody. The defendant has a right to have his defense attorney help formulate his approach to the evaluation. However, the attorney does not have the right to be present during the competency evaluation.
A psychiatric competency to stand trial evaluation consists of a full clinical psychiatric evaluation, including, but not limited to, past medical and psychiatric history, present medical and psychiatric issues, social and developmental history, mental status examination, screening for malingering, evaluation of the defendant’s thought processes, ability to understand, cooperate and communicate. In addition, the assessment includes a screen of the defendant’s insights and knowledge of courtroom procedures, personnel, legal rights, possible pleas, charges and possible consequences.
A.R.S. § 13-4509 states that a Competency to Stand Trial Report shall include at least the following information:
- The name of each mental health expert who examines the defendant.
- A description of the nature, content, extent and results of the examination and any test conducted.
- The facts on which the findings are based.
- An opinion as to the competency of the defendant.
If the mental health expert determines that the defendant is incompetent to stand trial, the report shall also include the following information:
- The nature of the mental disease, defect or disability that is the cause of the incompetency.
- The defendant's prognosis.
- The most appropriate form and place of treatment in this state, based on the defendant's therapeutic needs and potential threat to public safety.
- Whether the defendant is incompetent to refuse treatment and should be subject to involuntary treatment.
If the mental health examiner determines that the defendant is currently competent by virtue of ongoing treatment with psychotropic medication, the report shall address the necessity of continuing that treatment and shall include a description of any limitations that the medication may have on competency.
If the defendant is found competent to stand trial then the case is transferred back to the original court to preside with the trial.
If the defendant is found incompetent to stand trial, the disposition will depend on the crime and the probability of the defendant being restored. If the defendant is not competent and is charged with a misdemeanor charge, the court may hold a hearing to dismiss the charge.
If the defendant is charged with a felony, and there is substantial probability that the defendant will be restored to competency within 21 months, then the court will determine what is the maximum sentence the defendant could have received (A.R.S. § 13-4511). Based on nature of the crime and the maximum sentence, the court may order restoration that may be in-custody, out-of-custody, inpatient or outpatient, with or without medications, and the duration of the restoration.
If there is no substantial probability of restoration to competency within 21 months (A.R.S. § 13-4517), then the court may dismiss the charges without prejudice, initiate civil commitment proceedings, or appoint a guardian.
Criminal Responsibility - Guilty Except Insane
Arizona Revised Statute (A.R.S. § 13-502) states that a person may be found guilty except insane if at the time of the commission of the criminal act the person was afflicted with a mental disease or defect of such severity that the person did not know the criminal act was wrong. This is consistent with the M’Naghten’s rule for criminal responsibility.
The statute specifically excludes voluntary intoxication or withdrawal from alcohol or drugs, character defects, psychosexual disorders or impulse control disorders. Conditions that do not constitute legal insanity include but are not limited to momentary, temporary conditions arising from the pressure of the circumstances, moral decadence, depravity or passion growing out of anger, jealousy, revenge, hatred or other motives in a person who does not suffer from a mental disease or defect or an abnormality that is manifested only by criminal conduct.
The burden of proof is on the defendant to prove the defendant's legal insanity by clear and convincing evidence.
A psychiatric criminal responsibility evaluation consists of a full clinical psychiatric evaluation, including, but not limited to, past medical and psychiatric history, present medical and psychiatric issues, social and developmental history, and thorough examination of the events before, during and after the alleged crime. The expert focuses on the mental status of the defendant at the time of the offense and the relationship of the mental disease to the alleged offense.
According to A.R.S. § 13-3994, if a defendant is found guilty accept insane then the court will commit the defendant to a mental health facility (likely Arizona State Hospital) under the Department of Health Services. If the criminal act did not cause or threaten serious injury, then the person will be civilly committed. The person will remain in treatment until he or she proves by clean and convincing evidence that he or she no longer suffer from a mental disease and is not dangerous. However, before the release the court will consider the person’s entire criminal history and propensity to reoffend.
If the criminal act caused or threatened death or serious injury, the court will place the patient under the jurisdiction of the Psychiatric Security Review Board for the duration of the sentence the person could have received if found guilty. Once that time passes, the person may be eligible for release if he or she can prove by clean and convincing evidence that he or she no longer suffer from a mental disease and is not dangerous. The Board has the authority to vote on conditional release with continued monitoring and supervision. If the person becomes non-compliant an order from the Board will permit any law enforcement agency to take the person into custody and return then to the secure state mental health facility.