The impact of the COVID-19 pandemic has been far-reaching. Among other things, it has forced the reexamination of numerous aspects of professional procedures associated with law, psychiatry, psychology, and the forensic mental health assessments (FMHA) provided for courts and attorneys. In a relatively short period, we have witnessed the rapid spread of the virus, resulting in the public health–driven suspension of legal proceedings and closing of secure correctional facilities to official visitors. Any attempt to consider how forensic psychiatry and forensic psychology will function over the next five years may well be misleading because practice will depend on how quickly we witness the development of effective prevention and treatment of COVID-19.
Nevertheless, it is important to consider the potential implications for research, training, and practice in the field. If we experience an unexpectedly rapid breakthrough and efficient distribution of vaccines or therapeutic agents that effectively allow a return to forensic practice as we knew it prior to January 2020 in the United States, then this editorial will offer only an example of how we might approach adaptive planning. If the intermediate or most serious potential COVID-19 scenarios eventually occur (e.g., if there are recurring periods of social distancing in response to future exacerbations of the virus), then much of the practice of FMHA will be affected. Likely changes might include the use of videoconferencing technology to conduct evaluations, provide testimony, and meet with attorneys because of limited access to correctional facilities, courthouses, and attorneys' offices during periods of social distancing. There could also be a reconsideration of the purposes and use of incarceration and involuntary hospitalization because of the elevated risk of viral spread as the meaning of public safety is expanded. Finally, the changes made in response to public health concerns will raise myriad implications for research and training as what is “generally accepted” under Frye1 and Daubert2 becomes more difficult to determine given the rapid changes since January 2020.
In this editorial, we consider how the COVID-19 pandemic might affect FMHA. In a recent (but prepandemic) survey of forensic experts and legal professionals, the forensic experts expressed some openness to the use of videoconferencing technology in FMHA, although less enthusiasm was observed among legal professionals. Both groups cited challenges that included establishing rapport with evaluees and technical difficulties associated with videoconferencing; forensic experts also noted concerns that certain measures could not be administered, relevant behavioral data would be lost, and the risk of a confidentiality breach would be heightened.3 This editorial considers each of these challenges.
We approach this task by using broad, foundational principles of FMHA that reflect the literature in professional practice, law, research, and ethics that has developed over the past five decades.4,–,8 We focus particularly on the updated principles described by Heilbrun and colleagues,7 which are particularly well suited to this discussion for two reasons: they were developed as foundational principles intended to apply to the full spectrum of FMHA, and they have implications for practice, policy, and research.
The existing principles are listed in the left column of Table 1. We consider how each of these principles might change in a pandemic era of intermediate or severe intensity. First, we note that 25 of the 39 principles have implications for changes or modifications in future FMHA practice, but the remaining 14 principles do not. Thus, we expect that COVID-19 and the associated societal responses have substantial implications for FMHA, but some aspects of FMHA practice will probably not change. In the discussion that follows, we focus on the principles that identify modifications in practice, as summarized in the right column of Table 1. This review begins with generally applicable principles, then moves to several domains in the order in which they occur in a given case: preparation, data collection, data interpretation, written communication, and testimony.
Principles of Forensic Mental Health Assessment Adjusted for Pandemic Eraa
Much of this discussion involves the challenges associated with conducting remote evaluations of individuals who are incarcerated. FMHA is also conducted with individuals who are not incarcerated, of course. Most of the following considerations apply comparably to remotely conducted FMHA for incarcerated and nonincarcerated individuals alike. The most striking difference involves the nature of the evaluation conditions for the evaluee. Ensuring that conditions are quiet, private, and distraction-free is substantially more challenging for remote evaluations of individuals in juvenile detention, jails, or prisons.
Generally Applicable Principles
Clinical and Forensic Distinctions
Forensic evaluators need to be aware of the important differences between clinical and forensic domains. The historically well-delineated differences between forensic and therapeutic evaluations (see Heilbrun6) may blur in some instances. There are certainly instances of FMHA in which an important aspect of the legal decision involves treatment and responsiveness; evaluations conducted with juveniles to inform the judge's decision about disposition or transfer are a good example. But courts may reconsider the impact of certain kinds of dispositions when there is elevated risk of contracting COVID-19. Such a reprioritization could take different forms. Forensic evaluators who are medically trained could be asked, as part of evaluations or in testimony, about the assessment and treatment of the virus and the associated risk of contracting it. Risk assessment focused on violent behavior or other criminal offending could shift so that risk would include risk of contracting the coronavirus. Individuals who have contracted or been exposed to coronavirus may present with medical symptoms that are related to the virus itself. They may also present with related behavioral health symptoms, including fear and anger, that stem from our current public health circumstances as well as their preexisting behavioral health symptoms. The larger point is that well-established differences between forensic and clinical practice may no longer distinguish FMHA as clearly following the onset of COVID-19.
Appropriate Training
Appropriate education, training, and experience are required in one's area of forensic specialization. Remotely conducted FMHA will probably become more important in the future, as will the use of telecommunications technology involving videoconferencing, which means that the demand for specialized forensic competence will expand to include skill in the use of videoconferencing platforms (e.g., Zoom, Microsoft Teams) that extends well beyond that necessary to participate in a videoconference call. This demand also will involve logistical and ethics considerations: How will documents be shared? How will responses be recorded and securely archived? How will secure facilities ensure privacy without compromising security for individuals in jails and prisons who need to receive FMHA? For younger professionals who are still in training and more familiar with the use of communications technology in general, this knowledge may be acquired without much difficulty. Individuals who are more senior in the field, however (particularly those who are not proficient in the use of communications technology), may face more substantial challenges in incorporating this expertise into their practice.
Awareness of Relevant Literature
Familiarity with the relevant legal, ethics, scientific, and practice literatures pertaining to FMHA is important to forensic practice, but is subject to change. New case law on the use of technology for remotely conducted FMHA will likely develop soon. Applicable ethics guidelines may need revision to address questions such as informed consent, notification of purpose, data security, competence of the evaluator in using remote technology, and whether the particular approaches used are effective. Scientific literature will hopefully expand considerably to include empirical support for various newly developed approaches derived and validated for use in the pandemic era. Practice literature will necessarily evolve to consider, modify, accept, and reject certain current approaches for remote usage. Questions about licensure may be relevant, for example, when the forensic expert is licensed in one jurisdiction and conducts a remote evaluation of an individual who is physically located in a different jurisdiction. Therefore, reviewing the literature in these areas to maintain specialized competence will become even more important than it was before COVID-19.
Evaluator Bias
Efforts are made to control potential evaluator bias through monitoring case selection, continuing education, and consultation with knowledgeable colleagues. The present pandemic has powerfully affected the functioning of most aspects of our society and placed many at risk for contracting a virus with a potentially fatal outcome. High-stakes decision-making under conditions of uncertainty is likely to be associated with a host of implicit or unconscious cognitive biases affecting information processing.9 For example, it is possible that an evaluator conducting FMHA to evaluate competency to stand trial might be influenced by hospital conditions of elevated COVID-19 risk. Conditions in jail or prison could affect a risk assessment conducted for diversion to a community-based problem-solving court. We suggest that when evaluators consider medical health in their decision-making, they should make this explicit to minimize the impact of this kind of potential cognitive bias.
Knowledge of the Legal System
Forensic experts have always needed to be familiar with specific aspects of the legal system, particularly communication, discovery, deposition, and testimony. They will now need to expand their familiarity with various aspects of legal proceedings to include whatever pandemic-era modifications are made to existing processes. These changes may differ across state jurisdictions, with implications for cross-jurisdictional practice. Later we comment on potentially necessary changes to expert testimony that may also arise.
Preparation in Specific Cases
Evaluator's Areas of Expertise
Evaluators should only accept referrals that are within their areas of expertise. Needed substantive expertise under pandemic-modified circumstances may expand to include technology-assisted remote evaluations and associated changing legal parameters. If these changes are substantial, it will be important to have sufficiently mastered the applicable technology so that the communications experience is as seamless as possible. If an otherwise experienced evaluator is not competent in the use of technology, possible solutions might include greater reliance on partnerships (e.g., with a colleague or junior colleague in training), an expanded role for information technology consultants in FMHA, and more continuing education focused on technology-assisted evaluation.
Evaluators' Impartiality
At times, referrals must be declined when the evaluator's impartiality is unlikely. Objectivity in FMHA is addressed through ongoing efforts to limit the influence of factors that might interfere with impartiality.10 Among the additional influences that might emerge in a pandemic era are evaluator reactions to the added health risks associated with incarceration and the loss of certain kinds of information resulting from remote evaluation. Certain aspects of evaluees' behavior cannot be captured when only part of an individual's body (typically the face and upper torso) are visible on a screen. But another challenge may arise if the evaluator cannot adequately detect more subtle cues relevant to the evaluee's understanding, empathy, suspiciousness, humor, or other reactions that provide a more accurate behavioral appraisal and promote a better understanding of the person being evaluated. When this source of information is insufficient, it may be important to compensate for its loss by obtaining more third-party information while actively seeking to retain objectivity.
Financial Arrangements
Maintaining clear financial arrangements with retaining parties is a significant aspect of managing forensic practice. Currently established procedures for FMHA billing may change in a pandemic era. Those who now bill for travel and waiting time may spend less time in these activities, but new tasks may emerge that are not presently part of FMHA. For instance, planning to conduct a remote evaluation and related activities to gather supplemental information may affect the overall time billed. These financial costs may be difficult to clarify with requesting parties as the field begins to adjust to pandemic-related FMHA practice changes before common steps and billing areas are established.
Authorization of Evaluations
Forensic experts need to obtain appropriate authorization to conduct FMHAs, either from the court or from the request of an attorney representing the individual to be evaluated.8 Additional details need to be considered, however, for some FMHAs conducted in the pandemic era: Will a judge's order authorize a forensic expert's admission to a jail or prison that is largely closed to visitors? Will such an order provide a sufficient basis for a secure facility to set up a room to be used for a teleconferenced evaluation? How will jails balance the need for security against the requirement for privacy, while continuing to ensure that the videoconferencing technology is operating appropriately? What are the consequences for a facility failing to respect the privacy of an evaluation? The checklist for remote evaluation preparation will undoubtedly grow as the use of remote evaluation becomes more frequent and these questions are addressed.
Models of Forensic Practice
The most appropriate model should be used to guide data gathering, interpretation, and communication. The model developed by Grisso11 includes a “context” component that has generally included variables such as the seriousness of the charges, the personal style of the attorney, and the question of whether a criminal defendant will have a trial or agree to a plea bargain. If Grisso's model were used, such context would include the use of remote technology to conduct the evaluation.11 Remote context is likely to influence the gathering of data, its interpretation, and the communication of findings. Alternatively, the field might develop a different model specifically designed for use with remotely conducted FMHA.
Data Collection in Specific Cases
Sources of Information
Forensic evaluators use multiple sources of information for each area being assessed, reviewing available background information and actively seeking important missing elements. Within the three broad sources of information for FMHA (i.e., interview, testing and specialized measures, and third-party information including records and collateral interviews), there will likely be modifications related to the COVID-19 pandemic. (In this context, a specialized forensic measure is a test developed to measure the symptoms, behaviors, and functional-legal capacities associated with a specific legal question.) In particular, we can expect considerable changes related to the clinical interview and third-party information, which can be administered remotely, and related to testing and specialized measures, some of which cannot be administered remotely. Psychological testing and specialized forensic measures are typically developed and standardized using in-person administration. It is unclear whether they would yield meaningful results if administered remotely. Further, forensic experts who administer such measures generally use their observations and brief probes (e.g., “Can you read the first item out loud, please?”) to determine whether a given measure should be used. When these cues are less available, the risk of invalid results increases. The questions associated with remote test administration ultimately will depend on research data and new measures that will not be available to forensic experts for several years. Therefore, forensic experts must proceed cautiously and clearly describe limitations when conducting remotely administered interviews and tests in FMHA.
Testing Validity
Relevance, reliability, and validity are used as guides for seeking information and selecting data sources. Psychological tests and specialized forensic measures can play an important part in FMHA, but these measures may be insufficiently validated for use in remotely conducted evaluations. For example, tests that require individuals to use their hands to draw, write, or manipulate objects may be neither valid nor practical for remote use, eliminating many measures of intellectual and other neuropsychological functioning.
Clinical Validity
Forensic evaluators must assess clinical characteristics in relevant, reliable, and valid ways. Some form of clinical interview is widely used in FMHA. Such interviews may be less effective during the pandemic era when administered remotely, both because of limitations on behavioral observations and due to technical problems, such as freezing, skipping, and sound interference. The scientific evidence on the comparability of in-person versus remote evaluations will be important in deciding which in-person procedures to retain in remotely administered evaluations. It is also unclear whether evaluees who would otherwise be seen in person while detained will be as willing to engage with forensic evaluators when there is a risk for contracting COVID-19 in that facility. One possibility is that FMHA could be perceived as facilitating release from the facility, which might actually increase willingness to participate but could affect response style by emphasizing self-report that is consistent with release. On the other hand, the opposite may occur; depending on the circumstances to which the individual would be released, some may have fears about living in a pandemic-era community that would affect their willingness to participate or the accuracy of their self-report. In addition, a remotely administered evaluation may be perceived as less secure. The reliable and valid appraisal of clinical characteristics is hence likely to be limited in certain foreseeable ways (such as absence of certain tests and measures and technical problems with accurate depiction of the evaluee in remotely conducted evaluations) and in other ways we cannot yet anticipate.
Assessing Legally Relevant Behavior
In addition to challenges related to assessing clinical characteristics, there may be comparable difficulties in assessing functional-legal capacities in a pandemic era. Such capacities are typically appraised through questioning during interviews, specialized forensic measures, third-party interviews, and collateral documents. The difficulties in using remotely administered interviews and specialized forensic measures to appraise legally relevant behavior may limit their applicability. Fortunately, the review of collateral documents and administration of third-party interviews (at least when they are conducted by telephone) should not be affected in the same way. The other complicating consideration involves any changes to relevant functional-legal capacities resulting from adaptation in legal practice or changes in the law. For example, if an individual's capacity to work remotely with counsel is limited, that may affect the assessment of ability to assist counsel as part of trial competency.
Evaluation Conditions
Evaluators work to ensure that conditions for evaluation are quiet, private, and distraction-free. When conducting FMHAs remotely, the forensic expert has limited ability to observe and control the conditions experienced by the evaluee. Forensic experts likely have an increased interest in current and future remote access to detained individuals. This interest may provide an incentive to juvenile and adult correctional facilities to develop space that is secure but also quiet and free of distractions. Additionally, they must resolve the difficult problem of privacy, balanced against the need for technical support to ensure that the communication technology works reasonably well and is used appropriately by the evaluee (e.g., individuals confined in a secure facility could not be left unsupervised with hardware that would allow Internet access). Additional questions may arise as well: How much such space will be available? For how long can it be reserved? For how long can hardware be reserved for purposes of forensic evaluation, as opposed to clinical or other purposes? Will evaluees maintain attention and concentration during remote evaluations in a manner that approaches that observed in evaluations conducted in person?
Notice and Authorization
Making appropriate notification of purpose and obtaining appropriate authorization is required before beginning an evaluation. Obtaining informed consent for evaluations requested by the litigant's attorney, or obtaining the evaluee's agreement to proceed following notification of purpose in court-ordered cases, is a necessary step in FMHAs. Difficulty in establishing a working relationship and evaluee suspicion of remote technology could exacerbate difficulties at this stage. Some potential evaluees may be uncomfortable with remote technology, for reasons including privacy, unfamiliarity, and the potential for exacerbation of preexisting suspiciousness. (Telephone contact is likely to be more familiar but less informative, so the tradeoff must be considered.) Both of these problems would need to be resolved because conducting an evaluation without this step violates ethics concerns and is inconsistent with good forensic practice.
Evaluee's Understanding of Interview
Forensic practitioners are trained to determine whether the evaluee understands the purpose of the evaluation and the associated limits on confidentiality. The second part of this authorization step involves assessing whether or not the evaluee understands the information that has been provided about the nature of the evaluation, how it was authorized or requested, the purpose(s) for which it can be used, the limits on confidentiality, and the evaluator's role. Such understanding can be assessed by asking that each of these elements be repeated or explained. When evaluees experience substantial limitations in their cognitive functioning or reality testing, those limitations can interfere with understanding the purpose and nature of the evaluation. Evaluating such limitations, particularly in intellectual functioning, cannot be done as accurately without administering certain measures such as formal IQ tests. Thus, the forensic expert cannot describe as precisely why an evaluee might not understand this initial information. There is also the question of whether some of the apparent lack of understanding might reflect discomfort with the technology, which is something that would be more straightforward to answer in person. Any written material used as part of the authorization process might need to be revised for clarity and so that it can be read on a screen. If the evaluee's signature is part of this process, there will be the additional question of how the signature is obtained remotely.
Data Interpretation in Specific Cases
Interpretations made using findings from remotely conducted FMHA will necessarily involve more caution. We have identified various challenges to accuracy that might arise. How findings are interpreted will depend on our confidence in their reliability and validity. Until we know more about the impact of limits on rapport, technical problems, missing measures, limits on behavioral observations, and concerns about confidentiality, it will be necessary to be particularly careful. Though increased use of qualifying language may produce opinions that are less convincing, such adjustments will likely be required until the field adapts to and manages these challenges effectively. Peremptory caution in the interpretation of findings also anticipates that uncited limitations will not be unexpectedly presented on cross-examination.
Written Communication in Specific Cases
Forensic report writers are advised to use plain language and to avoid technical jargon. In describing cautions in the report, it may be necessary to include specialized information about telecommunications technology in addition to the substantive forensic specialty content. The telecommunications technology should be sufficiently well understood so that it can be described using language that is clear to others, even those who are unfamiliar with it. For instance, the question of the comparability of remote results to what would have been obtained in person should be anticipated and addressed using clear, nontechnical language.
Testimony in Specific Cases
Communicate Effectively
There are at least two ways in which expert forensic testimony may change in the pandemic era: when it is delivered remotely, and when it is delivered in person but describing an evaluation that has been conducted remotely. We have discussed different ways in which the FMHA, the foundation for expert testimony, may change. Those changes will certainly affect the substance of in-person expert testimony. The process of remotely delivered expert testimony also has its challenges. Communicating clearly and convincingly while looking into a computer screen rather than viewing a courtroom from the witness stand calls for the development of additional skills. The combination of remote technology with adversarial proceedings, without access to the feedback that experienced experts have come to use (e.g., others' facial expressions, the amount of information on the table of a cross-examining attorney), means that a once-familiar process will be less so. These differences may be disconcerting, particularly to those who are skilled forensic experts, but they can certainly be mastered as experts become more comfortable with the use of remote technology in adversarial proceedings.
Control the Message
Forensic experts strive to obtain, retain, and regain control over the meaning and impact of what is presented in their testimony. This principle is a specific example of how expert witness skills will need a certain adaptation when the testimony is delivered remotely. Experienced experts can anticipate periods of expert testimony during which they “flow,” communicating clearly and in a controlled way. There are other times when they are asked something that is unexpected, or something else occurs to interrupt their rhythm in providing testimony. They have developed strategies to regain control and comfortable communication when they have lost it. These strategies may not be comparably effective when testimony is delivered remotely, particularly when the expert cannot incorporate the cues provided by others in the courtroom. There is a brief lag time associated with verbal exchanges through telecommunications technology, for example, that could result in brief continued testimony following an objection. Being attentive to this lag time might make a witness more self-conscious than usual, with difficulty establishing the usual rhythm in testimony.
Conclusion
The impact of the present pandemic era will be experienced across a wide swath of our society, including the practice of forensic psychiatry and forensic psychology. It is important for our respective disciplines to consider how these changes might affect the provision of forensic evaluations to courts and attorneys. Adapting the practice of FMHAs and managing the challenges of COVID-19 will facilitate the continued excellence to which we strive as forensic specialists.
Footnotes
- © 2020 American Academy of Psychiatry and the Law
