VALIDITY OF FORCED PSYCHIATRIC FITNESS FOR DUTY EXAMINATIONS:

employer-mandated psychiatric fitness for duty examinations are
generally highly unreliable and possess low scientific validity for a
number of reasons:

1. They are too easily misused by employers who may wish to rid
themselves of an employee, particularly when the employee is
functioning satisfactorily on the job and is not exhibiting any
abnormal behavior on the job.
2. By using the highly intrusive mechanism of a psychiatric
examination, history, and diagnosis, which examines a person's
thoughts, feelings and fantasies, (not just their actual behavior),
almost any examinee can be stigmatized as potentially unsafe or
unstable, even though their overt functioning and demeanor on the job
is be exemplary. In the former Soviet Union, forced psychiatric
examination and treatment were misused in this manner to punish and
control dissidents who were critical of the regime, but who had not
broken any of
3. The essential point is that a forced psychiatric exam should not
be used as a measure of pathology in the absence of overt behavior
that is significantly dangerous, pathological or illegal.
4. Psychiatric evaluations often contain speculative conclusions
based highly subjective observations.
5. In the treatment setting this is unavoidable, but is mitigated by
the principle of confidentiality
6. In a forensic examination upon which a person's employment is at
stake, it is incumbent upon the reporting psychiatrist to lay a
scientific foundation for his/her opinions and to avoid speculation
or innuendo.
This means that the psychiatrist should examine logical alternatives
to any conclusion, and should refrain from making a conclusion when
key information is absent or being withheld that might support one or
more alternative explanations for the clinical findings. The forensic
psychiatrist should strive to distinguish to the extent possible,
between verified and unverified information as well as among,clinical
"facts", "inferences" and "impressions" (Section IV of the American
Academy of Psychiatry And The Law Ethics Guidelines The Practice Of
Psychiatry (Adopted May, 1987, revised 1995).

7. P6rsons examined in a forced fitness for duty exam should be
expected to be defensive, angry, and upset as a result of an
intrusive process over which they have no control, something which
can be used to destroy their livelihood. For this reason, vague or
poorly documented statements about the employee's personality traits
can be improperly used to disparage the employee's fitness for duty.
Statements in reports indicating an unfavorable personality trait
such as suspiciousness, secretiveness, or anger, must be verified
with collateral information to determine if these traits are a result
of the conflict with the employer or are long-standing behavioral
characteristics predating the conflict. Most employees subjected to a
forced fitness for duty psychiatric examination are likely to exhibit
responses of suspiciousness and anger.

8. 4. Arriving at a scientifically valid and reliable conclusion from
psychiatric examinations is difficult even in a treatment setting in
which the person is coming for help and is more motivated to offer
personal information freely. The forced psychiatric fitness for duty
examination creates an adversarial situation which, because of its
intrusiveness, causes employees to feel violated. This renders most
findings highly suspect, unless they are based on floridly abnormal
psychiatric symptoms or well documented aberrant behavior.

The substantial potential for the abuse of mandatory psychiatric
fitness for duty exams has been recognized by the United States
Congress with regard to federal employees. Excerpting some of the
conclusory statements found In the report by of the Committee on Post
Office and Civil Service of the House of Representatives (Committee
Print No. 95-20, 95th Congress, 2d Session 11/3/1978) the following
quotes from the report are pertinent:

(page 17)

"It is fundamental that an employee on a matter as sensitive to his
reputation, future, and capacity to earn an income, as is a
psychiatric examination, needs access to the courts. The barring of
involuntary psychiatric examinations by statute is also important,
since it is admitted by all concerned that such examinations do
little good and may do much harm.

(page 18)

That these examinations have been motivated by disciplinary
considerations rather than medical considerations, on a significant
number of occasions.

That an involuntary psychiatric fitness for duty examination places
the examining psychiatrist, who is briefed by management prior to the
examination as required by the regulations, in a position of being an
investigator, and the employee in a position of being a defendant who
may lose his or her present and future prospects for employment as
well as reputation in the community.

That a finding by an examining psychiatrist of mental illness based
on an employee's refusal to respond to a psychiatrist during
involuntary examination would be indication of incompetence on the
part of the psychiatrist, according to a subcommittee witness
representing the American Psychiatric Association. "

B. SPECIFIC PROBLEMS WITH DR. HILTON'S METHODOLOGY IN HIS REPORT ON DR.X:

1. Failure to adhere to the original purpose of the examination;

Failure to base his opinions on reasonable medical probability;

Failure to establish a logical connection between his recommendations
and his own or other psychiatrists' clinical findings:

Since it was solely for the purpose of reporting on psychiatric
fitness for duty, and was not the product of a treatment
relationship, Dr. Hilton's report on Dr. X must be definitely
considered a forensic psychiatric report.

The American Academy of Psychiatry and Law (AAPL) is a psychiatric
organization of forensic psychiatrists that has established certain
methodological guidelines for forensic testimony and reporting. For
purposes of commenting on Dr. Hilton's methodology, it would be
illustrative to quote from Section IV of the AAPL Ethics Guidelines
For The Practice Of Psychiatry (Adopted May, 1987, revised 1995):

"IV. Honesty and Striving for Objectivity

Forensic psychiatrists function as experts in the legal process.
Although they may be retained by one party to a dispute in a civil
matter or the prosecution or defense in a criminal matter, they
adhere to the principle of honesty and they strive for objectivity.

Their clinical evaluation and the-application of the data obtained to
the legal criteria are performed in the spirit of such honesty and
efforts to attain objectivity. Their opinion reflects this honesty
and efforts to attain objectivity.

Commentary The adversarial nature of our Anglo-American legal process
presents special hazards for the practicing forensic psychiatrist.
Being retained by one side in a civil or criminal matter exposes
forensic psychiatrists to the potential for unintended bias and the
danger of distortion of their opinion. It is the responsibility of
forensic psychiatrists to minimize such hazards by carrying out their
responsibilities in an honest manner striving to reach an objective
opinion.

Practicing forensic psychiatrists enhance the honesty and objectivity
of their work by basing their forensic opinions, forensic reports and
forensic testimony on all the data available to them. They
communicate the honesty of their work, efforts to attain objectivity,
and thee soundness of their clinical opinion, by distinguishing, to
the extent possible, between verified and unverified information as
well as among clinical "facts", "inferences" and "impressions."

necessary for him to show the clinical observation or evidence on
which to base an assumption that would lead him to recommend to the
employer that Dr. X be barred from returning to his regular duties,
and to document the severity of his inability to focus. None of this
was done.

By making speculative statements about Dr. X's "personality
disordered vulnerabilities" without making any documented or
definitive linkage to the effect of such "vulnerabilities" on patient
safety or the performance of his clinical duties, Dr. Hilton failed
to stay focused on the stated purpose of the mandatory psychiatric
fitness for duty examination.

By failing to try to distinguish between verified and unverified
information as well as among clinical "facts", "inferences" and
"impressions," Dr. Hilton's methodology clearly did not meet the
standards of objectivity outlined in the AAPL guidelines cited above.

2. Failure to consider alternative logical possibilities in his
diagnostic discussion:

On pages 24 and25 of his report Dr. Hilton stated:

"He also exhibited attitudes of paranoia and grandiosity that may or
may not have a basis'in reality. He described Emory as plotting
against him in its efforts to try to get rid of him and also said
that a national news network (CNN), and the federal government were
going to be involved in exposing Emory on behalf of Dr. X. After
reviewing all of the information available to me, I think it more
likely that these attitudes are related to his personality and not to
any active psychotic symptoms associated with a Bipolar illness." (p.
24)

"At the present time, it is my opinion that almost all of Dr. X's
present symptoms and presentation are the result of his personality
disordered vulnerabilities, exacerbated by the stress of his conflict
and that likewise in circular fashion the conflict is likely being
exacerbated by his personality disordered vulnerabilities. To what
extent Emory has played a role in this conflict I am uncertain. I
have no opinion on that issue" (p. 25).

If Dr. Hilton is uncertain about the role Emory played in causing the
stress that Dr. X has experienced, then he cannot logically rule out
the alternate conclusion that Dr. X's stress and apparent
"personality disordered vulnerabilities" resulted from Dr. X's fear
of losing his job and his distress over being relieved of his
clinical duties. It is the forensic psychiatrist's responsibility to
endeavor diligently to ascertain the validity of an examinee's
assertions regarding stressfull situations. Unless the assertions are
logically impossible or completely bizarre, the examining
psychiatrist should not automatically assume that the examinee's
assertions are not his business to investigate. Dr. Hilton made no
notation in his report as to whether he even tried to find out from
officials at Emory University whether Dr. X's assertions were true or
not. If Dr. X's assertions about Emory are accurate, then from a
clinical standpoint then retaliation on the employer's part would be
the most likely explanation for the "personality disordered
vulnerabilities" that Dr. Hilton observed.

III. CONCLUSION

For the aforesaid reasons, it is my opinion, held to a reasonable
degree of medical probability, that Dr. Hilton's report employed
improper methodology and flawed reasoning.


1 Deposition of Richard S. Epstein, M.D.
2 December 15, 2000
3 RICHARD S. EPSTEIN, M.D.,
7 Q. Do you do fitness for duty
8 evaluations?
I find, in
5 general, they have a very low probative
6 value. And I have a big problem with them
7 generally.

4 Q. You know Don Soeken?
5 A. I've met him once in person.
6 I've talked to him on the phone occasionally.
7 Q. Under what circumstances do you
8 talk to Don Soeken?
9 A. He was a consultant to the
10 Committee on Abuse and Misuse of Psychiatry.
11 He's a psychologist.
24 Q. What is the Committee on Abuse of
25 Psychiatry, what is that?
00033
1 A. The American Psychiatric Association
2 has a committee structure. We have
3 committees that advise the Board of Trustees.
4 Basically before we take actions we run
5 things through our committees.
6 And one of the committees was this
7 committee -- there was actually the Committee
8 on the Abuse of Misuse of Psychiatry in the
9 United States, and there was also one in the
10 World. There were two separate committees.
11 And then they merged into one committee.
12 Basically, what they deal with --
13 the international committee dealt with things
14 like what happened in the former Soviet Union
15 or other countries where psychiatry is used
16 for torture, where they used psychiatrists, as
17 you may recall from history or years back --
18 I don't know if you remember this -- but
19 dissidents, the Soviet dissidents, people who
20 criticized the government and were put into
21 psychiatric hospitals, and the psychiatrists
22 were used by the State in order to declare
23 the people as mentally ill, because they
24 didn't have enough evidence to convict them
25 of any law. So they used psychiatry as a
00034
1 way of incarcerating people and keeping them
2 drugged up, that kind of thing.
3 So the U.S., our American
4 Psychiatric Association felt this was an
5 abuse. And we complained about it in the
6 World Psychiatric Organization and made a big
7 stink about it. And that was one of the
8 things.
9 At that point the U.S. was
10 criticized because we were complaining about
11 other countries, and what about abusive
12 psychiatry in the U.S.? There have been some
13 bad stories in the U.S. where maybe you
14 recall years ago there was this thing with
15 patients given -- I don't know when it was.
16 It was in the `30s or `40s, people who had
17 syphilis were not given treatment. People
18 were kept in hospitals without an adequate
19 chance to -- without adequate representation,
20 and things like that, you know.
21 So our committee was set up to
22 deal with abuses in the United States. And
23 one of the things that committee dealt with
24 was the use of forced fitness for duty exams.
25 And, in fact, the committee did come up with
00035
1 a resolution, that these examinations were, in
2 fact, a very bad idea. They had a very low
3 probative value. And they were often
4 misused.
5 Because what was happening is that
6 psychiatrists were being put in the position
7 of being used to act either as policemen or
8 to make statements that would cause -- would
9 play on the stigmatization of mental illness
10 in the United States and where there wasn't
11 enough evidence to let's say fire someone or
12 do something based on their actual behavior,
13 a psychiatrist was used in some way to affect
14 that person.
15 So this was felt to -- the
16 standards were felt to be inadequate. It was
17 felt to be not scientific, and that it was
18 often misused.
2 A. The committee of our organization.
3 I'm an officer of the American Psychiatric
4 Association. I was on the board. The board
5 approved the committee report.
6 Q. And of what practical affect was
7 that?
8 A. It's not -- in terms of -- you
9 know, that's a good question. It's still
10 something that's controversial. In fact, our
11 assembly didn't approve it, so it never
12 became an official policy of the American
13 Psychiatric. So it's one of the things that
14 was approved by the executive board, but not
15 by the assembly, which is like our
16 legislature. So it certainly shows that a
17 significant portion of the members felt that
18 there's a problem with it. But they felt
19 there is some controversy and they wanted to
20 study it further. So that's where that
21 stands.
22 Some organizations have stopped
23 doing it. For example, the federal
24 government has had a big problem with it,
25 including the Library of Congress, which was
00037
1 under a separate -- they're kind of a --
2 they're not under the Executive Branch.
3 They're only answerable to Congress. They were
4 doing them, and they have since stopped doing
5 them. Largely for these kinds of reasons. So
6 there has been some affect, I mean, after
7 time.