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  Legal question?

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Author Topic:   Legal question?
Robert Pointer
Member
posted 10-21-2008 01:41 PM     Click Here to See the Profile for Robert Pointer   Click Here to Email Robert Pointer     Edit/Delete Message
With all the restrictions of health matters we are limited on what we can ask in a pre-employment exam. For police applicants who have received a conditional offer of employment can we stil ask "Are you currently being or have you been treated for depression".
Since we are giving the applicant a gun and placing them in a stressful environment I think this would be a logical question.
Any ideas?

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ebvan
Member
posted 10-21-2008 02:41 PM     Click Here to See the Profile for ebvan   Click Here to Email ebvan     Edit/Delete Message
While you are probably OK asking this question AFTER conditional offer of employment, I wonder what this has to do with your examinee's suitability for polygraph.

Presumably as a police candidate he will undergo a psychological evaluation. Any medications he might be taking for depression should come out on the medication questions. Unless you are also a psychologist or psychiatrist do you really feel qualified to assess whether or not any previous treatments for depression were successful or if whatever depression he might suffer would interfere with his ability to be a police officer?

It definitly is a logical question and a legitimate concern, I just don't think the polygraph examiner is the person who should be asking it.

I am aware that other examiners disagree

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Ex scientia veritas

[This message has been edited by ebvan (edited 10-21-2008).]

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detector
Administrator
posted 10-21-2008 02:55 PM     Click Here to See the Profile for detector   Click Here to Email detector     Edit/Delete Message
My understanding is that it is okay to find out if they have a legal diagnosis of any mental/emotional disorder.

In other words, if a psychologist/psychiatrist has actually rendered a diagnoses form the DSM IV or whatever the current manual is, then it is important to know that for the polygraph test, especially if there are any psychotic episodes or suicide attempts involved.

I know that doesn't apply just to depression, but I think that is important and I always ask about being 'officially diagnosed' not just whether they have ever been depressed and talked with someone about it.

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Ralph Hilliard
PolygraphPlace Owner & Operator

Be sure to visit our new store for all things Polygraph Related
http://store.polygraphplace.com

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ebvan
Member
posted 10-21-2008 03:34 PM     Click Here to See the Profile for ebvan   Click Here to Email ebvan     Edit/Delete Message
Let me play the devil's advocate here detector. If they have ever attempted suicide or had a psychotic episode, do you decline to test them? If so why? Does it render them unsuitable for testing?

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Ex scientia veritas

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detector
Administrator
posted 10-21-2008 03:50 PM     Click Here to See the Profile for detector   Click Here to Email detector     Edit/Delete Message
My answer is.... maybe. If from that question they tell me they were diagnosed last month and are on meds from that, then absolutely, I would stop the test and require a medical release before conducting the exam.

I believe that there is room in the standards and principles of practice to determine if someone is 'suitable' for testing. No, we cannot self-diagnose, but we can make a judgment call to put that test off until we have a medical release.

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Ralph Hilliard
PolygraphPlace Owner & Operator

Be sure to visit our new store for all things Polygraph Related
http://store.polygraphplace.com

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rnelson
Member
posted 10-21-2008 03:52 PM     Click Here to See the Profile for rnelson   Click Here to Email rnelson     Edit/Delete Message
Ralph and ebvan,

I don't completely disagree with either of you.

However,

Be careful with the idea of a "legal diagnosis." Diagnosis are clinical, not legal. Legal terms usually sound like "mental defect" or "incompetent." These are very severe problems that are assessed in the context of a known incident and legal proceding. They are high level concerns that are likely to show up in the BI.

We are playing with some possibly under-informed assumptions about depression and violence risk.

Depression is does not appear to be strongly associated with violence risk, though there are some indicators of increased correleation with intimate partner violence, and addiction, and other things. The picture is not completely clear.

Media incidents are misleading, in that they always report "was being treated for... (depression)" or "was being treated with... (antidepressants)." Which may or may not be accurately interpretable information. Modern antidepressants are effective for a wide range of symptoms, and are generally well-tollerated (minimal side-effects). In the context of an emerging acute or chronic mental health problem, anti-depressant medications will often be first-at-bat, followed by other mood stabilizers, and then the neuroleptics. Antidepressants can sometimes exacerbate a bipolar mood disorder, and mental health professionals are sometimes engaged in "train-catching" problem.

Train-catching problems, involve the avoidance of resource wasting (time), until it is too late and the train is missed (a catastrophic problem). Train-catching is an economic problem, slightly different from the non-catostrophic "news-boy" problem of simply trying to optimize the economic gap and ratio of product cost overhead and lost profits from unsold stuff.

Depression, like (ADD and bipolar disorder), is sometimes regarded as the diagnosis du-jour. A lot of mental health professionals don't like to diagnose people - because it's considered "labeling" (which is considered by some bleeding-heart types to be "bad"). Also, a lot of mental health professionasl are not very good at diagnostic work - it's difficult, especially in the context of differential diagnosis, dual-diagnosis, and medical comorbidity. So, we see a lot of under-diagnosis, and off-label prescribing (in which a doctor uses a depression medication for "stress" without a diagnosis of depression.) Off-label prescribing is not wrong, it's how we learned that some anti-convulsants can help some bipolar patients, how we learned that some anti-hypertensives can reduce intermittent explosive and other reactive anger/agitation problems, and how learned more about the relationship between depression and anxiety.

I'm not sure about any convincing trend in the evidence for depression and gun violence.

Depression is correlated with suicide. One of the highest risk groups, at present, is middle-aged white males, with access to firearms, poor social support, and sudden/unexpected changes in employment/financial/legal circumstances. Suicide prevention efforts have often been directed around teenagers and young adults, because they were considered "at risk." Risk among these groups is visible, because mental health concerns tend to emerge during transitions into and through adolescence, and the transition into adult life.

We are also playing with some possibly un-informed assumptions about psychoticism. The data are actually fairly clear hear. Psychotic persons are at no greater risk for violence than non-psychotic persons. However, psychotic persons with a history of violence are at increased risk for continued violence compared with non-psychotic persons with a history of violence. Again, you have to be careful interpreting these data and findings, because the highest risk group for continued violence, among persons with violence histories, is non-psychotic perpetrators of intimate partner violence.

I agree that the information is interesting.

Keep in mind that a lot of people don't know or don't bother to remember their diagnosis. Other times, professionals aren't real clear with patients about the diagnosis. They may tell the patient that antidepressants are for stress and anxiety. Sure.

It would be better to simply elicit the subject's history of taking medications for any mental health related reasons.

I have no problems with a polygraph examiner asking about a police applicant's history of taking prescription medications, and even about the reasons for those meds. To focus naively on one diagnosis (a vague and misleading one at that) is misguided.

It's up to the psychological evaluator to determine the signal value of the information (medication history and reported reasons), regarding violence risk and police candidacy.

It's also not just about violence risk. It's about training success (training is expensive), and job performance (poor performance is expensive too).


.012


r

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"Gentlemen, you can't fight in here. This is the war room."
--(Stanley Kubrick/Peter Sellers - Dr. Strangelove, 1964)


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detector
Administrator
posted 10-21-2008 04:08 PM     Click Here to See the Profile for detector   Click Here to Email detector     Edit/Delete Message
Sorry about the word legal, knew that didn't sound right when I wrote it.

I guess my overall point in answering the original question is that I think we have room to ask those questions to determine 'suitability' to test. In other words, the questions are for us as the examiner doing our job, not about digging up info to include in the applicant's personal file.

I also think it applies even if they have not been made a conditional offer of employment.

If I am incorrect in this, somebody please tell me now before I get my pants sued off because this is how I've been doing it all along.

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Ralph Hilliard
PolygraphPlace Owner & Operator

Be sure to visit our new store for all things Polygraph Related
http://store.polygraphplace.com

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ebvan
Member
posted 10-21-2008 10:05 PM     Click Here to See the Profile for ebvan   Click Here to Email ebvan     Edit/Delete Message
I think the nexus between medication questions and suitability for testing is clear. Many licensing statutes prohibit testing when the examiner feels that the examination may be compromised by the effects of medication or if the examinee appears intoxicated or impaired.

I am unaware of any studies that indicate that a past or present clinical diagnosis for depression, bipolar disorder, etc, renders a subject unsuitable for polygraph testing. I am also unaware of any studies that indicate that history of psychosis does either. Under those circumstances, I find it hard to justify the question about mental health treatment.

This of course would change if the person appeared overly mentally unsettled or irrational during the examination. (I am purposely avoiding medical terms here because I'm no Doctor.)

I would absolutely be uncomfortable reporting to a chief of police that I couldn't or wouldn't test a candidate because of a mental health history absent some articulable behavior that appeared to render him untestable.

That being said, the problem with asking medical questions, before the conditional offer of employment, lies more in the perception than the application.

Let's suppose that prior to the conditional offer, the examinee discloses a potential medical or mental health disqualifier to the polygraph examiner who is functioning as an agent of the employer. The examinee doesn't get the job and decides to file an ADA violation complaint. The examinee has a pretty good shot at an ADA claim that the employer possessed medical information that he should not have asked before the conditional offer. That is why Physical exams and Psychological evaluations occur post offer and why I think polygraph should be done post offer as well. Not because Employers and examiners are using the medical screening questions to circumvent ADA, but because of the perception of impropriety.

But then, I’m a careful guy, I have never tested a person who was pregnant. Not because I think they can’t be tested or because I have any reason at all to believe that polygraph might harm one. My components are relatively benign and I never try to overstress anyone because it leads to crappy charts. The reason I haven’t is because if something terrible happens; the likelihood that somebody will try to blame the stress associated with polygraph rather than the myriad of other things that can go wrong with a pregnancy seems pretty high and I can’t think of a single way to prove such a claim is wrong. I know that L.E. and Government examiners occasionally have to test during a pregnancy, trapped in a catch 22 between liability and equal opportunity. But I am no longer in that situation because I work for ME.

As examiners we do a pretty good job of impressing our employers with our knowledge and professionalism. It is for precisely this reason that I think we should be very careful making comments that would lead people to believe that we are qualified to render medical opinions. Because, by golly, they believe us.

Whenever I am discussing an examinee who exhibits symptoms of being Dingier than a Bell Choir, I always qualify the statement with "I'm no doctor".

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Ex scientia veritas

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AD
Member
posted 10-23-2008 08:48 AM     Click Here to See the Profile for AD   Click Here to Email AD     Edit/Delete Message
Ralph,

Please see link below, important guidelines of what may and may not be asked in the pre-employment stage before a conditional offer is given.

Most agencies give conditional offers prior to polygraphs now and you actually need this offer prior to asking someone about the frequency of past drug use. (See #8)
http://www.ada.gov/copsq7a.htm

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Taylor
Member
posted 10-23-2008 05:26 PM     Click Here to See the Profile for Taylor   Click Here to Email Taylor     Edit/Delete Message
Utah DOPL rules state under 'unprofessional conduct' includes:
(18)failing during a pretest interview to specifically inquire whether the
individual to be examined is currently receiving or has in the past received medical or
psychiatric treatment or consultation;
(19) failing to obtain a release from the individual being examined or a
physician's statement if there is any reasonable doubt concerning the individual's
ability to safely undergo an examination;

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Robert Pointer
Member
posted 10-24-2008 12:09 PM     Click Here to See the Profile for Robert Pointer   Click Here to Email Robert Pointer     Edit/Delete Message
Thanks for the replies. I really appreciate them. I have been doing police applicant screening for 20+ years and have used that question, but now that I am retired I am no longer under the umbrella of my department so I must be more careful.
Thanks for the link to the disability page. That is most helpful too.
Since it is not unusual to spend $100,000.00 to train and outfit a new officer for the first year of his probation and employment we must be highly selective who we hire. Since we have no access to that persons medical background except for what they let us see, I feel a person prone to bouts of clinical depression may not be suited for a highly stressful career as a police officer. If the applicant answers yes to the question it is mearly noted for the psychologist to address during his session. If not on the polygraph interview the subject may choose to not disclose this information at all. Not to mention, if an incident involving the officer happens later, the media will play it up big time if they find out, then want to sue the department for not asking it.

Bob Pointer

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ebvan
Member
posted 10-24-2008 12:56 PM     Click Here to See the Profile for ebvan   Click Here to Email ebvan     Edit/Delete Message
Bob, Since you have transitioned from Law Enforcement to private polygraph you should think about the scope of your responsibilities and how they may have changed. As a private examiner it isn't really your job to determine or render opinions as to whether or not a candidate can handle the stress of law enforcement.It is not even your job to recommend whether or not he should be hired. Your job is really only to administer a polygraph examination and intepret the data you collect. You are also allowed to repeat admissions made during the pretest and post test interviews within reaonable limitations.

You can best protect yourself by conducting a proper examination which determines whether ro not the examinee reacts to relevant issues and/or elicit admissions to specific behaviors that your employer has determined will be taken into consideration during his hiring decisions.

Your reports should be a professionally worded version of "the examinee made the following statements and admissions prior to data collection, the examinee exhibited or did not exhibit significant reactions to relevant questions, and the examinee made the following statements and admissions following data collection.
This gives the employer the 3 things he is paying for.
1. What the guy said before the test.
2. The test results.
3. What the guy said after the test.

Don't ever give a police executive the ability to say either "The examiner said to hire him" or "the examiner said not to hire him" It's a good way to get yourself in hot water.

APA by-laws address your question this way
4.4.1 A member shall not provide any report or opinion regarding the medical or psychological condition of the examinee for which the member is not professionally qualified to make. This shall not preclude the examiner from describing the appearance or behavior of the examinee. Polygraph outcome decisions shall be restricted to only those based on polygraph data.

and

4.9.1 A member shall not disclose to any person any irrelevant personal information gained during the course of a polygraph examination which has no connection to the relevant issue, and which may embarrass or tend to embarrass the examinee, except where such disclosure is required by law.

One might argue that psycholoical history is relevant to suitabilty for police work, I tend to agree with you on that. However I think in the above context they are using the term "relevant issue" to those topics raised by relevant questions.

I really believe that Doctors should do what Doctors do, Psychologists should do what Psychologists do, and Polygraph Examiners should do what Polygraph Examiners do and that each shoud avoid encroaching on the others responsibility.

Medical and Psychological questions by Polygraph Examiners should be restricted to only those questions that have a direct impact on the examinee's suitability for testing. I think anything more than that would be tough to defend.

But thats just one man's opinion


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Ex scientia veritas

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rnelson
Member
posted 10-24-2008 02:01 PM     Click Here to See the Profile for rnelson   Click Here to Email rnelson     Edit/Delete Message
Well said ebvan.

r

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