Forensic psychiatry involves “the determination of competency to stand trial, criminal responsibility, parental fitness, liability to civil commitment,” and other legally relevant matters.1 Various sources of ethical guidance emphasize that this will almost always require some sort of examination-based assessment.2 Until about a year ago, these examinations were typically conducted in jails, prisons, courthouses, hospitals, and nursing homes, as well as in counsel’s office and private residences. As a result of pandemic conditions and restrictions, a doctor’s access to such venues has been severely curtailed or eliminated altogether. The solution—at least for now—has been to move the assessment process online. Dazed, overloaded, and facing more than enough practical barriers of its own, the legal system has been slow to react to the evidentiary implications of forensic telehealth assessment. But inevitably it will.
June 23, 2021 Feature
Forensic Telehealth Assessment During and After the Pandemic: An Evidentiary Wake-Up Call?
By Eric Y. Drogin and Carol S. Williams
The Traditional Process
There are three foundational components to the traditional forensic assessment process: testing, interview, and a review of records and other collateral sources. There is no specific order in which these components must be addressed. For example, it can be helpful to review records before deciding what tests to use, current interview data can be important in identifying what records should be obtained, and test results can raise issues that may merit the use of certain structured interview protocols for clarification. Opposing counsel won’t get too far griping about which came first, and the doctor can revisit any or all of these components at any point along the way.
When the examinee is first encountered, obtaining informed consent for the evaluation may be necessary, depending upon the requirements of the jurisdiction and the nature of the case at hand. This can result in the examinee reading and signing a document—sometimes lengthy—that addresses confidentiality, privilege, fees, and a host of similar matters. The examinee may also sign releases at this point, enabling prior records to be obtained and future records to be forwarded to the court and other entities.
The doctor usually documents a range of behavioral observations that can assist in the interpretation of test results and that can inform the overall legal referral question. What can be said, for example, of the examinee’s gait, emotional presentation, speech patterns, hygiene, and style of dress? Is there anyone else present who may be lending emotional support, creating an unwanted distraction, or providing input on the examinee’s behalf?
Psychological testing can involve dozens of timed verbal and physical interactions within the scope of a single measure. Interview can occur at this time, or on some later date. When appropriate, the doctor has an opportunity to provide initial feedback about the process. This may include preliminary test results, although some measures can only be scored later with resort to complex manuals and perhaps computerized data entry.
The Current Telehealth Process
Predictably, forensic telehealth assessment is designed to resemble traditional assessment procedures as much as possible. Doctors are creatures of habit. Each expert witness has learned first-hand, via the crucible of cross-examination, what it means to deviate too dramatically from time-honored expectations. The legal standards doctors must address remain unchanged, and new psychological tests and standardized interview protocols can take years and many thousands of research dollars to develop.
Doctors may find it difficult to do things via telehealth that they strove to do in the past. A mutual review of informed consent documentation can be challenging if screen-sharing technology is spotty or even unavailable due to platform limitations or minimal bandwidth. Obtaining signatures for informed consent and for releases may require the parties to resort to “snail mail” communications when examinees lack the technological resources to fax or email the necessary paperwork, or when certain jurisdictions or agencies require an “old school” ink signature.
What will the doctor need to do in order to obtain information about an examinee’s observable behaviors? This can be a particularly complicated task in the event of low-fidelity sound and images, when the area revealed by the screen is confined, and when examinees cannot be seen ambulating toward or away from their seats. Hygiene, for example, will be very difficult to assess without the evidence of all five senses. Who may be lurking just outside the field of view, communicating with examinees via handwritten notes, hand signals, or facial expressions? To what extent are examinees supplementing their test and interview answers with resort to their own secondary handheld devices, or by pulling up data on the same computer or smartphone dedicated to the examination itself?
Not every psychological test lends itself to online administration, although impressive strides have been made in some instances since the onset of the pandemic. The need to manipulate blocks, put together puzzles, and perform other physical tasks will rule out some measures altogether, and tests that are attempting to convert such operations for onscreen performance may take a great deal of time to develop a sufficient research base in order to pass forensic muster. Some tests—for example, those designed to screen for the presence of malingering—may rely on behavioral observations for the purpose of gauging consistency of presentation, when such observations are not readily performable.
The Future Telehealth Process
Does forensic telehealth assessment have a future? Well, for one thing, it has a past. Studies of online testing—typically utilized to reach individuals in remote or otherwise underserved areas—have been conducted for approximately two decades.3 Future practice will be guided by similar considerations, as well as by cost and convenience. Courts that may initially have been highly skeptical of forensic telehealth assessment are now inured to the process after over a year of witnessing it in action. This acceptance has been made easier by the virtual testimony typically used to convey such results, leading to the conclusion that “the ‘virtual expert’ is here to stay.”4
More and more tests will be retrofitted for online administration, or will be developed from scratch for cybernetic use. The research database will have continually more to offer when it comes to demonstrations of reliability and validity, including favorable comparisons to more traditional measures and innovations born of necessity and spontaneous innovation.5 Courts may in some instances be moved to look askance at purely online evaluations, devoid of any in-person contact, when in-person testing was a feasible, funded option with a comfortable deadline. On the other hand, they may be far less inclined to worry, for example, about follow-up examinations that were conducted when in-person contact had already been established, or when an evaluation needed to be conducted in a considerable hurry with minimal resources.
Evidentiary Challenges to Date
Courts are as pleased as they are surprised that forensic assessment is being conducted at all. Judges want to know when trials will start again, where to seat twelve jurors with due attention to the requirements of social distancing, what to make of defense challenges to testimony by masked witnesses, and how to cope with a staggering year-long backlog of unaddressed legal matters.
We should not be surprised to learn that a recent Westlaw search “failed to discern, for example, any contemporary published cases that turned on the computerized nature of ‘online assessment’ or “Internet-based testing’ procedures.”6 A sparse collection of older published cases—pre-pandemic in each instance—dealt with such matters as distracting image-shifting during expert witness testimony7 and the failure of clinical telehealth services to stem the tide of COVID-19 infections in detention facilities.8 Anecdotally, objections to computer-based assessment protocols are being brushed aside on the basis that everyone present knows that no viable alternatives are currently available.
The Future of Evidentiary Challenges
Appellate and post-conviction approaches will address two categories of forensic telehealth assessment: pandemic and post-pandemic. The mere fact that an evaluation was conducted online during the pandemic, when there appeared to be no other options, will not serve as a bar to, for example, a nunc pro tunc trial competency determination or an updated inquiry into a respondent’s civil disability status.
Post-pandemic evaluations will not typically lend themselves to defenses of necessity. What does a given test’s manual have to say about normative studies—if any—concerning online administration? Did certain test items call for corroboration on the basis of observable circumstances and behavior? To what extent did the examiner control (or at least possess the ability to monitor) critical aspects of the testing environment? Is counsel able to demonstrate that failures in this regard have compromised the utility of the evaluation and should cause the results to be discarded?
Practical Tips for Counsel
When commissioning forensic telehealth assessment, counsel will first and foremost want to engage in a discussion with the doctor about currently known advantages and drawbacks of this modality with respect to the legally relevant issues being investigated. If the doctor lacks specifics, dismisses such concerns out of hand, or seems puzzled by the underlying issue itself, counsel will need to determine if it is the procedure, the doctor, or both that need to be changed. Counsel may also be in a position to pose objections when informed that the other side’s doctor is going to undertake an evaluation with predictable reliability and validity concerns. In either instance, retention of a test-savvy mental health consultant may wind up being a prudent investment.
Endnotes
1. Forensic Psychiatry, Black’s Law Dictionary (11th ed. 2019).
2. See, e.g., Ethics Guidelines for the Practice of Forensic Psychiatry, Am. Acad. of Psychiatry & Law (2005), https://www.aapl.org/ethics.htm; Specialty Guidelines for Forensic Psychology, Am. Psych. Ass’n (2013), https://www.apa.org/practice/ guidelines/forensic-psychology.
3. See, e.g., Thomas Buchanan, Online Assessment: Desirable or Dangerous?, 33 Pro. Psych.: Rsch. & Prac. 148 (2002).
4. Eric Y. Drogin, On the Trail of the “Virtual” Expert: Counsel’s Guide for the Current Pandemic. 35 Crim. Just., no. 3, Fall 2020, at 11, 13.
5. Maurice Mars & Richard E. Scott, Being Spontaneous: The Future of Telehealth Implementation?, 23 Telemedicine E-Health 766 (2017).
6. Eric Y. Drogin, Forensic Mental Health Assessment (FMTA) in the Context of COVID-19, 71 Int’l J Law & Psychiatry 101595 (2020), https://www.doi.org/10.1016/j.ijlp.2020.101595.
7. United States v. Baker, 890 F. Supp. 1375 (E.D. Mich. 1995).
8. Refunjol v. Adducci, Case No. 2:20-cv-2099 (S.D. Ohio May 14, 2020).