CIVIL FORENSIC PSYCHIATRY-WHITHER OR WITHER?
Civil forensic psychiatry (CFP) is at a crossroads. Either we push for recognition of our work as a subspecialty within psychiatry or the status quo continues with covert and sometimes overt contempt for our choice of work and the further loss of any distinctive professional identity.
This talk is intended to give you my perspective of the current situation. I will highlight particular concerns and suggest some remedies.
In my experience all psychiatrists who do this work have learned by trial and error and have had no formal training. We have had to develop a specific skill set to work in multiple arenas..
OUR FIELDS OF OPERATION
Why do we do this work? I can only answer for myself. I like the lack of clinical responsibility. I like hearing stories. I like the detective work of teasing out what has happened. I like the process of compiling an opinion that is based on the data, that is defensible and that is fair. I am comfortable as a witness and this seems to suit my temperament.
The downsides are:
For example the requirement of WorkSafe that IMEs must perform 8 hours of clinical work a week in their field of specialty. This diktat ignores the fact that all colleges require compulsory CPD. This is a much greater indication of competence than eight hours of clinical work!
An enduring problem is the response of our peers to what we do.
We are the subject of negative views or comments from our peers, from benevolent schemes with regard to our motivation, our integrity and the perception that “you guys are just in it for the money!” as has been said to me. I have also been challenged in court by barristers asking questions like “you’re just a hired gun aren’t you doctor?”
In large part this disdain comes from the view that we have sold out for the dollar. We are perceived to have abandoned our clinical responsibilities.
In my view this is a reflection of the lack of understanding of the work we do and the specific skill set required to do the work. I am proud of the work I do and I believe it requires as much clinical knowledge, professionalism and integrity as any other subspecialty. Indeed, the problem is that others do not recognise or acknowledge that we are a subspecialty. We do not have a recognisable entity that speaks for us and advocates for us.
PROBLEMS GETTING STARTED
Many commence doing the work but find the lack of any training makes it too difficult. They find it too demanding of time and energy and the financial remuneration is vastly overstated considering the time involved. Some also find the possibility of being an expert witness very daunting and move to other areas of practice.
I have noticed a definite pattern over the years. WorkSafe and the TAC become frustrated with the relatively small number of psychiatrists who are IMEs and open up the system only to find that the new entrants are unskilled and cause more difficulty. They leave the system and WorkSafe and the TAC revert to using the small group who were there originally. This situation ebbs and flows as regularly as the moon.
A READY TARGET
Complaints against civil forensic psychiatrists are frequent and distressing to all those practitioners involved. We are ready targets when claimants disagree with our opinion. One has to only look at various websites to see the vitriol expressed about our colleagues and sometimes ourselves. The usual complaints are that we were late, rude, insensitive, we didn’t listen, we saw claimants for only 20 minutes or so, our reports were inaccurate, biased and our opinions were inconsistent with the body of the report.
We have seen that unfounded complaints to the Medical Board lead to so-called peer reviews that are time-consuming and a negative experience.
OUR OWN WORST ENEMIES
All too often I see reports that appear biased. I see reports that are predictable, one particular psychiatrist almost invariably writes “there is no diagnosable psychiatric disorder”.
Recently I came across a psychiatric supplementary report. The psychiatrist had diagnosed post traumatic stress disorder secondary to an industrial accident in which a truck had fallen on its side trapping the driver for some hours and he had sustained a right shoulder injury. Oddly, the psychiatrist considered that the right shoulder injury had partially contributed to the post-traumatic stress disorder!
The psychiatrist had been sent a report from an occupational physician whose opinion was that the right shoulder injury had resolved. The psychiatrist then wrote the following:
I conclude that the claimant’s psychiatric injury is now not materially contributed to by the accident because the psychiatric injury (the post-traumatic stress disorder) was always secondary to physical injury, and if the physical injury has resolved then the psychiatric injury cannot be related to work.
Ombudsman’s report Dec 2019 – WorkSafe management of complex claims
This is a recent report of the Victorian Ombudsman (December 2019). One section is entitled “Oversight of the IME System”. This section commented on:
The report focused on one IME, described as IME Y. This IME is not a psychiatrist, excerpts were provided from three of this IMEs reports to illustrate concerns.
The report then referred to complaints about IMEs and the lack of clarity of WorkSafe in dealing with these complaints. Excerpts were provided from eight reports of which seven were written by psychiatric IMEs. The concerns expressed included:
I have written a response to this report. In particular I considered that the matters referred to suggested a lack of appropriate training rather than deliberate bias and recommended a training program with a didactic component, mentorship and the ability to have supplementary retraining particularly if there have been any concerns expressed about the IME.
In short I noted the following:
THE COHORT OF CIVIL FORENSIC PSYCHIATRISTS
There are small groups of psychiatrists in Sydney, Melbourne, Brisbane, Adelaide, Hobart, Perth and Darwin who do the bulk of this work. Most of them do a good job, taking an adequate history, providing a defensible opinion that is consistent with the data and is written without prejudice or bias.
I think I do a good job, I believe I behave in an ethical manner and the reports I write are comprehensive and fair. However, I am now reaching the end of my professional life and I am concerned about those who come after me. How will they be trained? How will they be acknowledged? What support will they receive from the College?
Because of my concerns about the lack of training and because of the inability to source appropriate material that we should be able to have ready access to I decided, in collaboration with Nigel Strauss to develop and implement a training program.
In preparation for the first weekend training session in 2013 I did a good deal of research including editing all the legislation in Australia with regard to workers compensation, motor accidents and personal liability claims together with fee schedules, judges comments about psychiatric evidence amongst other material.
We held the weekend workshop in 2013, despite almost no publicity we had a full house with people coming from as far away as Western Australia and Darwin.
I decided that the material I compiled should not be lost and this led me to establishing the website www.civilforensics.com.au.
I prepared a short book as a sort of primer and decided to charge a fee to join the website to exclude trolls. Since then I have been updating the website by adding resources, publications of interest and I have been writing a blog linked to other material.
Subsequently Nigel and I ran another training session with a similar result. Obviously people who had gone through the training session did not have any formal qualifications arising from it.
In 2018 I was asked to establish a civil forensic psychiatry component to the training course at Swinburne University and with the help of several colleagues, some around this table, we put together a comprehensive outline of such a course. However, nothing happened!
I became concerned that the book I had prepared was both too sketchy, too Victorian orientated and missed out on several important areas of practice. I totally rewrote the book for an Australian and New Zealand audience and the resulting book “The Guide to Civil Psychiatric Assessment” was published in October 2019, it is available from me and also on Amazon.
Dr Jonathan Phillips, a former president of the College and a very experienced forensic psychiatrist reviewed the book and wrote:
This book is a must for young psychiatrists with an interest in forensic matters, and also for mature practitioners of various backgrounds.
Michael Epstein is a vastly experienced psychiatrist, with a long interest in the civil aspects of forensic psychiatry.
He speaks in a simple and engaging way to you the reader, and covers all aspects of civil psychiatric assessment. The work is practical, to the point, up to the moment, and easy to follow.
Michael Epstein has high skills as an educator. He has a wealth of material for every reader.
I strongly recommend the text to you. It will enhance your library.
Dr Nathan Serry, a member of our group also reviewed the book and wrote:
An overdue and valuable resource for all psychiatrists
who undertake civil forensic assessments.
I mention this because although I have run courses and have written a book I have no standing other than being one of you. I believe more is required.
RESEARCH IN OUR FIELD
There is a good deal of research in the areas described above, particularly with regard to workers compensation and transport accident claims. However none of this work appears to have come from any department of psychiatry! The following paper was written by legal academics.
Understanding independent medical assessments – a multi-jurisdictional analysis Environmental Scan
This review examined how compensation bodies use medical assessments including their processes and policy, procurement models and quality assurance. The medical assessment process varies widely among jurisdictions and each approach has its merits and drawbacks. The review identified a number of practices that may improve aspects of the medical assessment process. The review recommended future research directions with the intention to improve medical assessments for compensation bodies, clients and healthcare professionals.
One study: ‘The Cost of Comorbidity to the Transport Accident Commission Compensation Scheme’ noted that pre-injury mental health service use was associated with increased TAC cost. Other co-morbid factors that increased cost included diabetes, cardiovascular disease, previous surgery in the year before the accident and previous back pain.
Another paper on ‘The Health Effects of Compensation Systems (HECS) Study’ investigated the relationship between stressful claims experiences and long-term recovery after injury among transport accident and workers’ compensation claimants.
The most frequently-reported stressors were
Claimants who reported high levels of claim-related stress were at heightened risk of poor long-term recovery (with higher levels of anxiety, depression and disability).
This type of research is important but here are other areas about which we have particular concerns.
DO WE GROW OR WITHER?
I have a number of concerns about our future.
SEXUAL ABUSE CLAIMS
Sexual abuse claimants requiring assessment have become like a tsunami after the recent royal commission and other investigations.
Most of us find these claims difficult because:
As a result, most psychiatrists limit the number of assessment regarding sexual abuse claims to 2-3 per week and some to only two a month. There are only a small number of female psychiatrists who are prepared to do this work.
I have concerns that if psychiatrists do not meet the need for assessments of these claimants then psychologist may be enlisted with the possibility of a significant reduction in standards.
There has been an increased tendency for IMEs to do work for medical agencies. There is a subtle pressure from these medical agencies to write reports that are most likely to please their major customers that are the benevolent schemes such as WorkSafe. I am not implying that psychiatrists who work for agencies are biased, I am stating that the key performance indicators of these agencies are not necessarily compatible with our independence.
Many IMEs like this work because they avoid all the pressures of providing supplementary services, office space, clinical responsibility and often have an opportunity to travel interstate.
The downside of that is that we have seen the encroachment of psychiatrists from interstate, often assessing claimants in jurisdictions about which they have little knowledge or expertise. In my view this diminishes the quality of their reports.
The agencies do very well but the IMEs receive a relatively small portion of the fee in return for regular appointments, transcription services and accounting. This tendency to become a contractor to an agency makes us functionaries in a larger system, akin to the role of many general practitioners in large medical clinics. I believe this will have a detrimental effect on our independence and credibility.
THE FACULTY OF FORENSIC PSYCHIATRY
For some years some of us have advocated for a Faculty of Forensic Psychiatry. This has proven to be a mistake. The faculty has brought together psychiatrists who work in the criminal justice system with those of us who do civil forensic psychiatry. We have nothing in common. The psychiatrist who work in the criminal justice system are doing clinical work with a particular population group characterised by drug dependence, alcohol abuse, childhood abuse, personality disorders and violence. Civil forensic psychiatry deals with a quite different population. Psychiatrists who have been in normal clinical practice for some years are, in my view, much better equipped to do the work of a civil forensic psychiatrist than those who work in the criminal justice system.
The upshot is that the faculty has been dominated by psychiatrists working in the criminal justice system and civil forensic psychiatry is regarded as the poor cousin. We have no one to advocate for us in various fora.
My concerns about the Faculty were encompassed by a letter I wrote to the head of the Faculty and the President of the College in December 2018. I have received three or four emails from the head of the faculty but no response from the College President.
In that letter I referred to:
A questionnaire was distributed and the definition has been changed but nothing has happened apart from a change in the definition.. The definition of forensic psychiatry is now
Forensic psychiatry is the subspecialty of psychiatry which interfaces with the law.
I have attended the last three forensic faculty conferences and have been dismayed by the small number of presentations relevant to my area and, as a consequence, the small number of civil forensic psychiatrists to attend these conferences. Heaping insult on injury, the conference in Perth was only about criminal justice psychiatry.
CONTINUING PROFESSIONAL DEVELOPMENT¶
I have mixed views about the demand that we must all do CPD annually to retain our registration according to AHPRA but nevertheless this is a reality. My concern is that the CPD process for those of us who do this work is grossly inadequate. It does not seem to reflect the work that we do. It has been developed by the Faculty of Forensic Psychiatry with some limited input from civil forensic psychiatrists.
On 8 February, 2018 I received the following unsolicited email
I just wanted to pass on my thanks to Dr Epstein for his consistently thorough report histories and opinions. I am currently reviewing the matter of (yyyyyyyy) and once again Dr Epstein has provided a really comprehensive report of high quality. Every time I read one of his reports I know I am getting an informed decision regarding a client’s entitlements. If you could pass on my thanks for his consistent professionalism and high quality reports that would be appreciated.
Senior Injury Coordinator
Senior Injury Team
Transport Accident Commission
I submitted this to the CPD program. It was rejected as it did not meet the criteria!
The lack of training and accreditation and the lack of recognition by the college of this subspecialty has led to problems with recruitment, especially recruitment of women.
When confronted with voluminous documentation, and unwilling interviewee, the demands to provide a timely report with an opinion that may be challenged in court and the prospect of being a witness in court, it is not surprising that a number of psychiatrists look for other areas of practice.
I believe we need a fully accredited training program for psychiatrists who do this work. There is a paucity of training provided by the College for midcareer psychiatrists who are looking to continue in their practice but would like to take on other areas of practice. This is particularly so for those who want to do civil forensic work.
The training program should include a didactic component, mentorship including an opportunity to have reports reviewed informally and the means by which concerns about performance can be addressed.
Those who already do this work should be grandfathered but new entrants should be required to complete a training program.
We also need to facilitate peer review groups to share concerns about issues and to provide support when problems arise such as complaints to AHPRA.
I believe organised training is unlikely to occur within the Faculty of Forensic Psychiatry for the reasons I mentioned above.
I believe that we need to establish a Special Interest Group including psychiatrists in a majority of the other states (a college requirement) and we should be provided with funding by the College to meet and plan a program. Furthermore money paid by us to the Faculty of Forensic Psychiatry should be directed to this Special Interest Group that could be part of the faculty but may have to stand alone.
The Special Interest Group should:
We need to acknowledge that we have a unique skill set, over and above what is required in clinical practice. We need to recognise that this unique skill set entitles us to be regarded as a sub-specialty.
As a sub-speciality we must:
How do we bring this about?
The Faculty of Forensic Psychiatry has been unresponsive to all of these concerns.
We need to develop a Special Interest Group that is either part of the faculty of forensic psychiatrists or separate from it (my preference).
The Civil Forensic Psychiatry Special Interest Group) would provide a formal structure to advocate and implement these ideas.
The status quo continues leading to: