Prevention of Violence by Workers: The Independent Psychiatric Examination

Presented October 9, 1996


Introduction

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.

Purpose

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.

Finding an Independent Psychiatric Examiner

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.

Confronting the Worker

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.

Crafting Questions for the Examining Psychiatrist

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.

Payment & Cost

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.

Information the Examiner Needs

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.

Privacy and Confidentiality

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.

Implementing Recommended Interventions

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.


Additional Reading:

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