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The role of the examiner in a clinical versus forensic evaluation
The role of the examiner in a clinical versus forensic evaluation

Whether engaging in treatment directly or assessment for the purpose of facilitating treatment, clinicians in a doctor-patient relationship assume an empathic, trusting and nonjudgmental stance with their patients. The patient’s perception of his or her circumstances is primary and the clinician advocates for the patient by using professional expertise to relieve the patient’s suffering. Forming a therapeutic alliance is critical for treatment to be successful. Clinicians also assume they share the same goal as their patients, which is optimal health and functioning. Therefore, the patient’s self-report is frequently the primary if not only source of information the clinician relies upon for diagnosis and treatment planning. Confidentiality restrictions limit further assessment (or corroboration) of reported symptom picture and level of functional capacity.

If a clinician is asked to testify in a legal matter on behalf of the patient, there are limitations to the type of testimony that can be offered because of the existence of a doctor-patient relationship. The clinician may testify as a fact witness, but should not offer expert opinions, unless extreme circumstances warrant it, such as the inability of the attorney to find an expert due to living in a remote area, etc. As a fact witness, the clinician can offer facts about when the patient was seen, general evaluation procedures employed, diagnosis, treatment protocol details and duration, prognosis, etc. The clinician should not offer [expert] testimony about issues indirectly related to the patient’s case, such as the empirical basis for tests employed, treatment protocol chosen or prognosis. They should similarly not opine about psycholegal matters, such as injury causation, competency, sanity, recidivism risk or fitness for duty. In doing so clinicians risk having their full testimony stricken, not to mention damaging the therapeutic relationship. Attorneys who consider using their client’s treater as an expert witness, or who send their clients for “clinical evaluation” in the interest of shortcutting, risk irreparable harm to their cases. By retaining an independent expert, attorneys can ensure that a treating clinician’s fact testimony withstands the scrutiny of the legal system and the therapeutic relationship remains intact.

In forensic evaluations, the role of the examiner is to aid fact-finders, be they judges, juries, civil commissioners’ boards and the like, in rendering decisions and making determinations. Examiners use their professional expertise to offer opinions regarding an individual’s legal and/or functional capacities, extent of cognitive or emotional injury, etc., in the form of an expert report, expert testimony or both. They may also assume a behind-the-scenes consultative role, reviewing another expert’s work or otherwise preparing an attorney for direct or cross examination. The emphasis of the expert’s work is solely to facilitate ultimate legal and administrative decisions, in which the examiner does not directly take part. Unlike clinical examiners, for whom the subjective experience of the patient and relief of their symptoms are primary, for forensic examiners these issues are secondary (we like to say our clinical hats are never off, just on backwards). In fact, forensic examiners are prohibited ethically from fostering the perception that they are in a “helping role,” and their neutrality and objectivity impedes the formation of a therapeutic alliance. The opposite is also true, though many treaters fail to appreciate the inherent conflict in assuming an expert role when a doctor-patient relationship exists. Finally, if a clinician’s professional training has emphasized the primary nature of the therapeutic relationship and treatment concerns, s/he may experience difficulty adjusting to the different focus of the forensic role.





Isaac Ray Forensic Group, LLC • 65 E. Wacker Place, Suite 2240 • Chicago, Illinois 60601 • Ph: 312.621.9002 Fax: 312.621.9003 E: info@irfg.org