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The nature of the relationship between examiner and examinee in a clinical versus forensic evaluation
The nature of the relationship between examiner and examinee in a clinical versus forensic evaluation

In clinical evaluations, patients voluntarily seek clinical attention. A doctor-patient relationship exists, and the patient is the holder of privilege. This means the discussions between doctor and patient and evaluation findings are confidential. Patients own their records, can access them, and the clinician may not disseminate the record unless the patient opts to divulge it. Other HIPAA-related rules apply.

Because these contextually-differing rights are not necessarily intuitive, and examining physicians and psychologists are naturally perceived as members of the “helping profession,” it is critical that examiners assuming a forensic role make clear to the examinee the absence of a doctor-patient relationship and limits of confidentiality at the start of the evaluation, clarify questions or concerns raised at that time, and include a full description of the examinee’s waiver in any report that is produced.

In forensic evaluations, individuals are evaluated at the request of a third party, in the context of a legal or quasi-legal matter (e.g., at the request of an employer or board, such as in fitness for duty, workplace violence risk or pension disability examinations). There is no doctor-patient relationship between the examiner and examinee, and there is similarly no expectation of confidentiality. The examinee is not the holder of privilege; the third party that referred the individual for evaluation (attorney, court, employer, etc.) owns the record and work product, and while some exceptions exist, in the vast majority of cases examinees are not entitled to the examiner’s report, though they may ultimately receive a copy from the third party via legal or administrative procedures.

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