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January 18,2023 Post-Pandemic Update:

This article was originally written early in the Covid-19 Pandemic. Since May 5, 2020, much has changed. Many temporary and experimental adaptations to restrictions imposed by the pandemic have become normalized and adopted by lawyers, the courts as well as by forensic psychiatric experts. Suffice it to say that judges and attorneys have become far more comfortable with remote testimony, when necessary, in depositions, hearings, mediations, and even in trials.

Forensic psychiatrists routinely conduct forensic psychiatric IME examinations remotely, alongside the growing practice of clinical telemedicine and tele-psychiatry. There are differences of course between remote interview assessments and in-person assessments. Sometimes, especially when being able to observe the examinee’s non-verbal body language is relevant to ultimate opinions and conclusions, in-person interviews are preferred and should be arranged, even if inconvenient and more expensive due to travel costs. However, in the majority of evaluations in civil and some criminal matters, remote interview assessments of plaintiffs or criminal defendants provide more than adequate information and are exceedingly practical and accessible.

In contrast, most forensic psychologists require in-person testing for some of the more frequently employed psychological tests and for virtually all of the neurocognitive tests generally utilized. The reasons for this preference are two-fold. The first reason is validity. Very few if any psychological tests have been normed on a remotely tested population. Therefore, drawing conclusions about an individual based upon a comparison of their test responses with a base group on whom the testing was conducted in person can raise serious questions about the validity and reliability of interpretive conclusions. In addition, some tests such as the Rorschach personality test and many neurocognitive assessment instruments require face-to-face interaction in order to properly perform the required tasks. For these two reasons and others, most forensic psychologists and neuropsychologists are not comfortable administering full batteries of psychological, and especially neurocognitive tests remotely.

When remote psychiatric interviews and some remote testing is to be conducted, it must be done in a neutral, quiet and private setting, using standardized computer equipment and secure video platforms and without the presence of any third parties (except a court certified interpreter if necessary) or cell phones and without using the examinee’s personal computer devices. We have found that court reporter offices provide an ideal environment for remote psychiatric evaluations and recommend using them for these purposes.

Telemedicine and telepsychiatry were growing rapidly, prior to the arrival of the Covid-19 pandemic.

• A press release published in Marketwatch (October 15, 2019) stated that telepsychiatry was growing at a compound annual growth rate of 22.6% and was expected to reach $300 million per annum by the end of 2025¹.
• This growth is a response to the vast population of Americans who are underserved by currently limited mental health professional resources, together with the recent development and introduction of HIPAA compliant, high quality, affordable video conferencing technology.
• There is currently, on average, approximately one American Board of Psychiatry and Neurology (“ABPN”) certified psychiatrist serving 10,000 Americans2. Over 60% of counties in America do not have a single psychiatrist.

Due to similar dynamics, virtual (i.e., remote) forensic psychiatric practice has only recently begun to grow. That recent growth, however, will be propelled by the growing need for remote forensic psychiatric assessments due to the COVID-19 pandemic.

• To become ABPN board-certified in forensic psychiatry, a psychiatrist must complete a 1-year full- time forensic psychiatry fellowship following a 3-year psychiatric residency, and then pass a rigorous ABPN written examination.
• Currently, the ABPN estimates that there are only 1306 active board-certified forensic psychiatrists in the U.S.², i.e., only four per one million Americans.
• Simultaneously, the demand for evidence-based forensic psychiatric expert opinion and testimony in criminal and civil cases has grown continuously for the past several decades.

Thus, the recently imposed shelter-in-place/work-from-home restrictions related to the COVID-19 pandemic, has merely accelerated an already emerging trend of remote forensic psychiatric assessments of plaintiffs and criminal defendants.

• Already, electronic versions of medical and legal records are increasingly relied upon by forensic psychiatric experts, supporting the portability of forensic psychiatric practice.
• Over the past 14 years, our Northern California based firm has been retained to work on cases in widely diverse jurisdictions including Guam, Hawaii, Arizona, New Mexico, Texas, New York, North Carolina, South Carolina and Florida. We have recently added offices in Nevada, Illinois and North Carolina to meet the growing demand for forensic psychiatric services.
• The emergence of new, high quality, reliable technologies, such as video teleconferencing platforms, have facilitated the growing acceptance by attorneys and the courts of remotely conducted forensic psychiatric IME’s.
• In addition, attorney-expert conferencing, depositions, and even trial testimony can be provided remotely and recorded simultaneously utilizing video technology.
• The expansion of forensic psychiatric practice using these new technologies and tools
  fosters collaboration across great distances, saving travel and associated expenses, and allowing the limited number of forensic psychiatrists nationally to supply expertise for matters even in remote jurisdictions.

​Which specific forensic psychiatric services can be provided remotely to assist civil and criminal trial attorneys?

• Initial phone and/or video conferencing when seeking and vetting an expert. Video conferencing permits the prospective retaining attorney to not only hear, but to also see, how an expert communicates and handles impromptu questions and discussion. This kind of “audition” makes it easier for a prospective retaining attorney to assess how a particular expert may perform as an expert witness in deposition and trial.
• Records, including very large files, can be immediately uploaded to experts by employing secure, encrypted and fast cloud-based data transfer platforms, such as Box.
• Multi-hour forensic psychiatric examinations can at times be conducted remotely using Zoom, and recorded simultaneously to provide a record of what was and was not asked or said during the examination, without having to employ expensive professional videographers or deal with the logistical, ethical and data problems of third parties being present during forensic psychiatric interviews. However there is no standard of care position on the recording of forensic psychiatric examinations by the American Academy of Psychiatry and the Law. Consequently, fpamed experts use their own best judgment under the circumstances of each particular case.
• Similarly, expert disclosure and other expert reports can be promptly transmitted electronically to retaining attorneys, saving time and unnecessary delays, especially when litigation deadlines may be short.
  In addition, depositions can be conducted and video-recorded automatically without incurring the cost and considerable loss of time that occurs when either attorneys or experts must travel long distances to attend depositions. Again, the automatic video recording capability of platforms such as Zoom can save the deposing counsel the additional cost of hiring a videographer.
• Finally, trial testimony can also be provided via video teleconferencing saving the costs of time and travel and make the expert opinion and testimony more readily available in remote and/or rural areas of the country where there may be no forensic psychiatrists located within hundreds of miles. This availability will be a particular boon to more remote and rural jurisdictions such as sparsely populated states and various offshore US territories.

Which specific procedures cannot yet be conducted remotely?

• The American Academy of Psychiatry and the Law does not provide a standard of care position on the use of video recording for a forensic psychiatric evaluation, therefore it is up ot the expert conducting the examination to use best judgment according to the circumstances of each case.
• Most psychological, and virtually all neuropsychological testing, cannot yet be conducted remotely. There are complex reasons for the ongoing need for in-person assessment. These include, among other issues, the test administration procedures employed when a given psychometric instrument was originally developed and normed. If test materials are administered in a manner that differs considerably from the conditions under which the test was originally normed, then comparisons of the examinee’s responses with those within the test’s database may not be valid or reliable.
• ​One striking solution to this problem that has just occurred involves the Minnesota Multiphasic Personality Inventory – 2, one of the most robust and by far the most studied psychological tests available. The MMPI-2 results are widely accepted by the courts. In light of the COVID-19 crisis, last week, Pearson, the publisher of the MMPI-2, has given permission for the test to be administered on a computer platform remotely, so long as someone is monitoring the individual being tested. Under careful conditions, this could be accomplished via constant televideo contact between the psychologist and the examinee throughout the test administration. Pearson is allowing this new variation in test procedure based upon research monitored by the University of Minnesota. In a recent online statement³, “Publisher’s guidance for remote administration of the MMPI-2 Instruments,” the University of Minnesota Press stated the following:
  • There is ample evidence that the reliability and validity of MMPI test scores are preserved when the test is administered by computer or tablet (e.g., Finger & Ones, 1999; Forbey & Ben-Porath, 2007; Menton et al., 2019; Roper, Ben-Porath, & Butcher, 1995)…
  • The American Psychological Association’s Guidelines for the Practice of Telepsychology indicate that: psychologists may consider the use of a trained assistant (e.g., proctor) to be on premise at the remote location in an effort to help verify the identity of the client/patient, provide needed on-site support to administer certain tests or subtests, and protect the security of the psychological testing and/or assessment process. (Joint Task Force for the Development of Telepsychology Guidelines for Psychologists, 2013, p. 798)
  • If feasible, the availability of an on-site proctor to carry out the tasks just described would best meet the need for supervised MMPI administration. If this is not feasible, remote supervision can be accomplished via audio-visual monitoring following the practices outlined in Pearson’s guidance on Administering the MMPI Instruments via Telepractice. Specifically, the test-taker should be seated so they can be observed onscreen by the individual supervising the remote administration, and audio should be enabled allowing the test administrator and test taker to communicate. Appropriate precautions should be taken to properly identify the test taker. Any unusual events that may occur during testing should be noted and considered in the interpretation of test results.
• Thus, remote psychological testing is just emerging as an acceptable psychological practice modification. While it is clearly possible to administer the MMPI-2 remotely, this is a very new liberalization and it is unlikely that many psychologists have yet acquired experience with this procedural variation. However, given the current pandemic, this practice is likely to grow quickly.
• Before neuropsychological testing (assessment of cognitive functioning) can be conducted remotely, however, more study and validity research will have to be done by the academic psychological community to determine which tests are feasible and will retain their validity if administered remotely.

All thirteen experts (9 forensic psychiatrists and 4 forensic psychologists including 3 neuropsychologists) are eager to continue to serve our legal clients’ needs during this unprecedented period of personal immobility. If we can assist you with remote assessment of plaintiffs or criminal defendants, please do not hesitate to contact us at 415.388.8040 or email hidden; JavaScript is required for a no-obligation case consultation.

¹ “Global Telepsychiatry Market Size, Status and Forecast 2019-2025,” MarketStudyReport, February 27, 2019, 90 pages.
² https://www.abpn.com/about/facts-and-statistics/
³ https://www.upress.umn.edu/test-division/mmpi-instruments-remote-administration

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