Prevention of Violence by Workers:
The Independent Psychiatric Examination
H Berryman Edwards, MD
Presented October 9, 1996
Introduction | Purpose
| Finding an Independent Psychiatric Examiner | Confronting the Worker | Crafting
Questions for the Examining Psychiatrist | Payment &
Cost | Information the Examiner Needs | Privacy and Confidentiality | Implementing Recommended Interventions | Additional Reading
Only a small portion of violence in
the workplace is committed by workers and, contrary to popular beliefs, the mentally
ill are responsible for violence only rarely. The employer should consider requiring a
threatening worker to submit to psychiatric
consultation when the level of threat is sufficiently low to allow time for such an
examination to be completed, whenever the worker's behavior includes signs of mental
illness (or substance abuse), and when there is evidence of a risk that the worker will
claim a handicap and demand accommodation
in compliance with the ADA. (Some psychiatrists may also be able to assist in cases where
the perpetrator of the threat will not be examined, including cases in which the threat is
anonymous or generated by an identified non-worker.) Independent psychiatric consultation
should only be one element in a comprehensive response to the provoking situation which
may include law enforcement, restraining orders, security consultants, drug testing, union
contact and other interventions.
The primary purpose of obtaining independent psychiatric opinion in the face of
suspected risk of violence is always to minimize the risk that someone will be injured or
killed. The examination may also be useful to the employer in proving that appropriate
steps were taken to protect workers and customers in the face of civil litigation. The
psychiatric examination should produce a diagnosis and, if indicated, treatment
recommendations. This should result in untreated workers obtaining needed treatment and
other interventions, including accommodation of mental disabilities. Occasionally
independent examination may result in identification of substance use disorders or
even untreated general medical disorders and planning of appropriate interventions.
Although arguably a rare phenomenon, the discovery of an untreated medical, psychiatric
or substance use disorder allows the employer to not only keep a valuable employee, but
also to help that employee improve his or her health.
Finally, the independent examination may provide evidence that the examined worker does
not suffer from a disorder that requires accommodation, providing the employer with a
basis for defense if the worker later claims to suffer from a handicap and demands
modifications to the job.
Your company legal counsel may be in the best position to find a suitable psychiatrist
for independent examination. It may be the same psychiatrist that would be used for expert
witness testimony in litigation. The treating psychiatrists your EAP might refer a
depressed worker to may provide excellent treatment services, but may not be so well
suited to the more skeptical role demanded of an independent examiner. In fact, your EAP
may ultimately refer the worker to that very treating psychiatrist based on the
recommendations of the independent examiner. These roles should almost never be shared,
that is, there exists a fundamental conflict of interest between the treating psychiatrist
who is an advocate for the patient and the independent or forensic psychiatrist whose
client is the employer. Once a psychiatrist has examined a worker at the behest of the
employer he or she should almost never provide treatment services to that worker in the
future. Conversely, the treating psychiatrist should not be expected to provide an
independent opinion to the employer.
Other sources for finding competent independent examiners include professional
associations such as the American Academy of
Psychiatry and the Law and the Academy of
Organizational and Occupational Psychiatry. Local medical societies may list
physicians according to specialty. Look for those who list forensic
psychiatry or occupational
psychiatry as their specialty.
There are also businesses that provide access to "panels" of independent
examiners. This approach may provide an increase in the appearance of objectivity since
that company, not the employer, pays the examining physician. This arrangement suffers
from awkwardness in communicating with the examiner. The staff of the "panel"
company may be naïve regarding the special requirements of this kind of examination. The
examining physician may not know the nature of the needs of the client employer and may
not have access to needed sources of information until the day of the examination. If you
choose to use such an arrangement, ask for direct access to the examining psychiatrist by
telephone before the day of examination.
Ask the prospective examiner about experience with independent examination and
workplace violence risk assessment. If you suspect a substance abuse problem or other
specific diagnosis, ask about experience with that kind of disorder as well.
Once you have chosen your examiner try to identify a single individual as the contact
person for the psychiatrist. This should be either an attorney or someone from human
resources or personnel. Neither a supervisor nor a coworker should perform this function.
I will not attempt to provide general guidelines for confronting a worker with adverse
circumstances, but several suggestions apply to preparing the worker for independent
psychiatric examination. Present to the worker in direct, neutral language the facts that
have led to your action. It may be helpful to use terms like "stress" and
"burnout", indicate that psychiatrists are expert at defining and exploring such
problems, and that the company needs help from this expert. Often workers seem to
appreciate the opportunity to talk to a third party about problems they have experienced
at work.
A representative of the company should actually make the appointment for the
examination and suggest that the worker arrive early. Tell the worker that the company
will pay the examiner and that it will not be claimed against their health plan. Makes
sure the worker knows how to get to the examiner's office. Tell the worker who will have
access to the information obtained by the examiner, especially the written report. Provide
the worker with any other details you have learned about how the examination will be
conducted. Ask the psychiatrist about psychological testing, number and length of visits
required and whether the worker will be allowed to bring a companion or make a recording
of the examination before you schedule it.
Consider suggesting that the worker obtain legal counsel. Although this may lead to
more contention and complications, a worker who has an advocate may feel much less a
victim, especially when the psychiatrist explains that his or her responsibility is to the
company not to the worker. This usually also provides the worker with direct access to
knowledge about non-violent ways to resolve disputes.
If the worker is placed on leave pending the outcome of the examination, consider
providing pay and making sure that the worker understands that he or she will be paid
until advised to the contrary. This is a stressful event as it is; adding uncertainty
about income may increase the risk of violence. Remember: Although placing the threatening
worker on paid leave or even terminating employment may be necessary and may reduce the
risk of violence, neither action will eliminate risk, and either action may provoke
increased hostility from the worker.
The examining psychiatrist may ask that you formally request the examination in
writing, including a list of questions.
I recommend that you discuss your needs with the psychiatrist before preparing this letter
to assure that the questions can be answered. You may also want to tell the examiner
whether you want to keep a valuable employee or terminate a troublesome employee.
Although you will probably want to ask a direct question like, "Can the worker
return to work with safety?" you should understand that there is no standard for
making such a judgment. Psychiatrists can assess risk, but they cannot predict the future.
You can expect an assessment of risk and, even more important, especially if the worker is
returned to employment, a specific plan for minimizing risk that addresses each of a list
of risk factors.
You should also understand that an examining psychiatrist is likely to attempt to err
on the side of safety. There is a wide margin for error in this kind of assessment. The
more information you and the worker make available to the examiner, the more precisely the
risk can be estimated. You may want to impose a wide safety margin in cases where you plan
to terminate the worker. On the other hand you may want the examiner to "call it
close," accepting greater risk, in the case of a worker who is vital to your
organization.
You should also expect that psychiatrists will not always agree. When the examining
psychiatrist diagnoses a psychiatric disorder and recommends treatment as part of a return
to work, risk abatement plan, your EAP may have to refer the worker to a treating
psychiatrist who will have a different relationship to the worker and perhaps access to
more information. This may result in a different treatment plan from that recommended by
the examining psychiatrist. You should be able to ask your independent examiner's approval
of this plan.
Do not expect the examiner to make the ultimate decision regarding termination or
continuation of employment. The employer should make this decision. You may, however, ask
the independent psychiatrist to advise you regarding the relative risks associated with
each course of action.
Do ask whether the worker suffers from a mental disability that requires accommodation
under the ADA. You may also want to ask for assistance in developing an accommodation
plan. In some cases, however, this will require a more detailed knowledge of the workplace
than a violence risk assessment requires.
Discuss the cost of the examination and the terms with the examiner before engaging
their services. Expect to pay $500 to $2000 or even more for the initial examination and
report. The cost may depend on the degree to which you want the examiner to "call it
close" and the overall level of threat and risk. When the treat is very direct and
high level of risk is assessed you will probably want to budget more funds for an
examination that leaves no stone unturned. On the other hand a case that reveals few
factors may require a less thorough examination directed more toward arranging appropriate
treatment or addressing the need for accommodation of a disability. An independent
examiner should be cost conscious and willing to discuss the terms of engagement before
contracting. Beware of the examiner who insists that cost should be no object regardless
of the initial apparent level of risk.
Do not attempt to use the worker's medical plan to pay for the examination. Most
medical plans consider this kind of examination "not medically necessary" and
therefor not a covered service. Also, since the examiner works for the employer, not for
the employee, it would be unfair to access the employee's psychiatric or substance abuse
benefit, which is probably limited and may be badly needed to pay for treatment. Most
medical plans provide minimal reimbursement for psychiatric evaluation anyway.
The independent psychiatrist will hope to obtain a great deal of useful information
from the worker, but this information may be biased and unreliable and some workers will
be reluctant to provide information. At a minimum the employer should provide facts about
the situation leading to the examination. The entire personnel file may be useful in some
cases. Give the examiner access by telephone or direct interview to security personnel,
supervisors, and others who know the worker. (This will raise privacy issues that must be
careful addressed.)
Medical records are especially important. For the examiner to access them the worker
will have to authorize their release from the treating professional or institution to the
independent examiner. This can lead to delays, but if the worker wants a rapid resolution,
he or she may be able to influence the record keepers to act quickly. Telephone contact
may be helpful, but is far less reliable than written records. Reluctant sources may be
spurred into action if you inform them that the information is needed to minimize risk of
violence. They may fear liability if their resistance might be seen as contributing to a
bad outcome.
School and military records may be helpful. Under some circumstances the proper
authorities may be willing to access information about weapons permits.
Ideally both the employer and the examining psychiatrist will apprise the worker of the
limits of confidentiality
and who will have access to the information gathered. Ask the examining psychiatrist to
omit the worker's name from bills that other workers will process, or remove the name
before submitting the bill to your accounts payable department. Consider asking the
examiner to provide you only with the opinion and recommendations resulting from the
examination, but be prepared to pay for a full report. The examiner will want to keep this
if the basis for the assessment and recommendations are ever challenged.
Make sure the examiner knows enough about the culture of the organization. Provide
information about past events that may have impacted the worker such as reductions in
force, wage changes, promotions, demotions, transfers, and disciplinary actions. Provide
information about rumors. If future changes are anticipated and known to the worker,
provide this information to the examiner.
Before you implement recommendations discuss them with the examiner to be sure you are
clear as to the consultant's intent. Let the consultant know if any recommendation seems
impractical or cannot be implemented for other reasons. The psychiatrist may want to
suggest alternatives. Clear interventions with your legal counsel. Use your EAP staff to
assist in implementing treatment recommendations. Use care in implementing personnel
actions such as termination and transfer.
If you implement modifications to the job, respect the worker's privacy, providing only
the necessary information to supervisors and coworkers.
The examiner will probably appreciate hearing about the outcome of your interventions,
especially if you decide against termination. Contact them as often as needed to obtain
further advice when new problems arise.
BARON, S. Anthony, "Violence in the workplace: a prevention and management guide
for businesses", Pathfinder Publishing of California, 1993.
HESKETT, Sandra L, "Workplace violence: before, during, and after",
Butterworth-Heinemann, 1996.
LION, John R, "Evaluation and management of the violent patient; guidelines in the
hospital and institution", Springfield, Ill, Thomas, 1972
NIOSH ALERT: "Preventing Homicide in the Workplace", May, 1995
"Violence in the Workplace: Risk Factors and Prevention Strategies", Current
Intelligence Bulletin 57, DHHS (NIOSH) Publication
WHEELER, Eugene D, BARRON, S. Anthony, "Violence in our schools, hospitals, and
public places: a prevention and management guide", Pathfinder Publishing of
California, 1994
VANDENBOS, Gary R and BULATAO, Elizabeth Q, "Identifying risks and developing
solutions", American Psychological Association, 1996
US DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, "Guidelines
for preventing workplace violence for health care and social service workers", 1996
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