What happens during a defense mental examination?

Although every defense mental examination is conducted in slightly different ways (depending upon the particular procedures of the psychiatrist), the examination can generally be broken down into three phases:

Three phases of a defense mental examination

(1) Current ability to function
First, the psychiatrist will assess your current ability to function. This assessment will be comprised of an analysis of (a) your appearance and demeanor (e.g., are you dressed appropriately, did you arrive on time, are you cooperative); (b) your thought content and processes (e.g., are you capable of linear thinking, do you hallucinate, do you give appropriate answers, are you obsessive regarding a certain theme); and (c) your cognitive functioning (e.g., your short- and long-term memory, your awareness of any problems you may have).

(2) Complete history
Second, the psychiatrist will take a complete mental history, beginning with general background information (e.g., your childhood; whether your parents were divorced; mental or physical abuse; abandonment; mental disorders in your family). The history will also include questions about your current workplace and the facts underlying your claims. Finally, the history will include an examination of your current illness—the onset of symptoms; how they affect your life, work and family; and the type of treatment you sought.

(3) Alternative causes
Third, the psychiatrist will look to see whether there is any alternative cause for your mental illness and whether you have any “secondary gain” or motive for exhibiting symptoms. The psychiatrist will ask you about current stressors (e.g., financial or family loss) or past stressors (e.g., an abusive childhood) that may explain your mental condition. In addition, the psychiatrist will explore whether you might have a reason to fabricate your illness (e.g., settlement money).

In some cases, you may be asked to take certain “objective” and/or “projective” tests. Some of these “objective” tests include:

  • The Minnesota Multiphasic Personality Inventory-2 (“MMPI-2”), a widely used standardized questionnaire designed to help diagnose mental disorders and treatment protocols.
  • The Millon Clinical Multiaxial Inventory-III (“MCMI-III”), a self-reporting test designed to help diagnose personality disorders and clinical syndromes.
  • The Wechsler Adult Intelligence Scale—Revised (“WAIS—R”), a test of adult intelligence.

The “projective” tests consist of the presentation of stimulus (e.g., pictures, inkblots) and the recordation of your reactions. The defense doctor will use your performance on these tests in an effort to diagnose you with a mental disorder described in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision (“DSM-IV-R”).

Give the examiner written materials in support of your case

You may feel like the employer-defendant holds all the cards in these examinations. While that is true to some extent, there are a couple of things you and your employment lawyer can do to help protect you and shift the balance of power. First, know what you are getting into; talk with your employment lawyer about how the process works and what you might expect. Second, arm yourself with documents. Defense counsel generally will provide the examiner with certain documents (e.g., the complaint, performance evaluations, and excerpts and admissions from your deposition) and potentially inflammatory information about you (e.g., you were sexually molested as a child or divorced for committing adultery) in an effort to prejudice the examiner’s ultimate findings. You can present the examiner with written information of your own. Your employment attorney can put together a packet of helpful declarations, deposition testimony and other materials that support your claims. Your job, then, is to offer these materials to the examiner and to leave these materials in the examiner’s office, even if the examiner declines to review them. If the examiner fails to review these materials, her credibility can be challenged. For example, the examiner can be asked why she looked at the materials from defense counsel, but not the materials from you. Similarly, the examiner’s substantive opinion can be challenged on the ground that she failed to consider relevant information.