It is important to note that the harmful acts of a police officer will not automatically be imputed to his or her employer. The Supreme Court rejected automatic respondeat superior municipality liability for the acts of their employees absent a municipality’s contributing to the untoward acts of its employees—for example by indifference or unreasonable failure to consider a police officer-employee’s psychological state—the municipality will not be liable for the harm committed by the police officer-employee. One relevant case in this regard is Aranciba v. Berry. In that case, the city of New York was held not liable for the actions of two of its police officers, “upon the absence of any facts regarding the specific officer(s) involved ‘to suggest violent tendencies’ … (and where there were) a number of formal review procedures that deal with such circumstances as civilian complaints and discharge of weapons.” As a result, the opinion concluded, “plaintiff has failed to allege specific facts to support his theory of gross negligence or deliberate indifference, (therefore) this claim must be dismissed.” Cases that buttress this position include Chirieleison v. City of New York and Kieninger v. City of New York. In short, a municipality or department can protect itself against liability by taking reasonable steps to assure the psychological suitability of its members. The confidentiality of the communications made in a fitness for duty evaluation have been addressed by a declaratory judgment obtained by the Chicago Police Department and Isaac Ray, Inc. in a case involving a Chicago police officer ( City of Chicago v. Fraternal Order of Police, 1986). In this case, a police officer who had undergone a fitness for duty evaluation at Isaac Ray, Inc. claimed that the company acted illegally in communicating any information gathered during the evaluation process on the grounds that any such information was given in confidence under the Confidentiality Act of the State of Illinois (State of Illinois Mental Health and Developmental Disabilities Confidentiality Act). Isaac Ray, Inc.’s position was that the Act did not apply first, because it only applies to communications made “in connection with providing mental health or developmental disability services to a recipient” and second, because the fitness for duty evaluation was a service not to the recipient but to the agency requesting it. This view was upheld by the Illinois court and it was made clear that communications made in a fitness for duty evaluation are not confidential under the Act. It might be noted that in his opinion, the judge stated.

The chief’s right to order a police officer to undergo a psychological evaluation has been addressed by Conte v. Horcher. The Conte decision affirmed that in Illinois a police chief does have the right to order a “mental examination” for the purpose of determining “whether or not patrolmen are able to perform duties required of them.” The decision stated, “an examination, either physical or mental, enables the Chief to ascertain the qualifications of a person to perform particular duties or to fill a particular position.” The importance of a chief’s ordering such an evaluation when it is indicated was shown by a New York case, Bonsignore v. The City of New York, which held the city liable for the off-duty harms caused by a police officer where the city failed to “adopt or implement a sufficiently effective program of psychological screening and monitoring of police officers.” The jury found the defendant liable “because of defendant’s failure to adequately consider the problem of identifying policemen psychologically unfit to carry guns.” It was noted in that case that even though Bonsignore exhibited many of the characteristics that the department held should flag disturbed officers so that they could receive psychological help, in the 23 years that he was on the force he was never given a psychological evaluation. Expressed in that opinion was, “a police officer’s perception of himself is such that he will not recognize his own problems” and in “about every case of suicide of a New York police officer or of the commission of a unnecessary act of violence on the part of a member, feedback trickles in after the fact on how fellow police officers and how level superiors noticed some demonstrative abnormal behavior which for some reason they chose to ignore.” The opinion also cited evidence heard by the jury “that police officers are especially likely to suffer from emotional problems leading to marital difficulties and violent behavior.” In this case the jury found that the City’s efforts were so inadequate as to constitute gross negligence.

One of the forensic psychological issue concerns the use of psychological tests in this context. Psychological tests such as the Minnesota Multiphasic Personality Inventory (MMPI) often are normed on clinical populations whose motivation in taking the test is very different from that often found in a police fitness for duty context. The question arises as to the proper use of tests in such evaluations. Other forensic psychological issues include: What are the elements of an acceptable report? Should a diagnosis be given? Is a diagnosis helpful to elucidate the department’s understanding of the officer and for guiding any treatment recommendations? Is a diagnosis almost always stigmatizing to a certain degree? Another issue concerns whether the psychologist should make specific recommendations concerning the officer’s ability to work or whether the psychologist should provide the chief with as thorough and as accurate an understanding of the officer as possible and leave it up to the chief to extrapolate from that information whether, in the light of his knowledge of the nature of the work, the officer is fit for duty. A relevant forensic psychological issue concerns how much credence should be given to sources of information stemming from sources outside the evaluator’s office such as allegations made by citizens, neighbors, family members, or other police officers. Should the evaluator be confined to direct observations made in the interview and testing as well as the results of psychological tests administered by the evaluator? An ethical issue concerns how much feedback to give to an officer-evaluatee, particularly if a recommendation adverse to the officer’s apparent interest or desires is rendered. Should the officer be given the report if he or she asks for it? Should he or she be given any feedback at all or do the results of the evaluation “belong” to the department that ordered it?

There are numerous legal, psychological, and ethical issues presented by police-related fitness for duty evaluations. This article addresses some of these issues and covers some of the relevant case law; ethics primarily concern those of the American Psychological Association both generally and for forensic psychology. Legal issues include the chief’s right to order a psychological evaluation of his officers in a fitness for duty context. A major legal and forensic psychological issue involves the degree of confidentiality the police officer-client can expect in the fitness for duty evaluation context. Issues of consent with respect to collateral interviews are presented because, to obtain such interviews, the collateral source must be told who the evaluator is, in effect informing the collateral source that questions about the psychological functioning of the officer-interviewee have been raised. One forensic psychological issue concerns the necessity of gaining valid understanding of a person’s functioning in what could be an antagonistic atmosphere: The chief has requested and ordered the officer to participate in this evaluation; the officer may regard the evaluation as an extension of the chief’s ability to initiate discipline against him or even as part of a campaign of harassment; the officer may feel that the evaluation is an in- vasion of his privacy, not justified by what he may feel are the chief’s unwarranted concerns. Conversely, the officer may feel that he does have significant psychological problems and has communicated that to the chief and that the evaluation represents distrust of his statements in the chief’s eyes. In short, the officer may have an agenda that is separate from the objective of the evaluator, which is to determine as thoroughly, accurately, and objectively as possible what the officer’s psychological state is: The officer’s objective may be to be return or stay on active duty, or the opposite—to be placed on or remain on the medical roll.

One frequently occurring example is the case where a person hovers around some hypothetical fitness for duty line, being fit sometimes but unfit at others. It would also be the case of someone who relapses on alcohol or in other ways. Both of these cases could be handled in one of two ways. First, in the original FFD evaluation, a note can be added to the report indicating that any further instances of this form of psychopathology would be considered sufficient evidence that the officer was nonresponsive to treatment and as such declare him unfit for duty. The other way that this can be handled is to simply indicate that what was seen as perhaps an adjustment disorder, or an acute problem with a good prognosis is now considered to be a more chronic problem and for this reason a second FFD might determine that the officer is unfit for duty. Consider the situation where the officer is fine so long as he or she is taking psychiatric medications, but demonstrates an unwillingness to take medication, or the case in which the officer is simply noncompliant with treatment. In these instances, it is appropriate to indicate that the officer is simply unfit for duty. To illustrate the fitness for duty process, consider the following fictionalized composite. The officer in question (whom I will call Officer Jones) is a 29-year-old male, married with one child, who has been a patrolman in this agency of 50 sworn personnel for 5 years. By way of background, he has 1 year of college. His performance up until the events in question has been above average though not exceptional. He had one sustained complaint involving verbal abuse of a subject during an arrest several years prior to the event in question.

The monitoring of police officers who are in a treatment program is in itself a complex topic. A major concern is to assure that the police psychologist does not have a dual relationship with the officer. In other words, it is inappropriate for the psychologist who will be evaluating the officer’s fitness to return to work to simultaneously provide treatment. Such an arrangement will invariably undermine treatment and the return to work assessment. A rare exception might be made when the patient knows in advance what the recommendation will be and waives confidentiality with that in mind. This might be done if the patient were to want to avoid the stresses of a FFD evaluation. The proper procedure is to refer the officer to an independent provider who will provide the police psychologist with information regarding attendance and participation in treatment and indications when treatment is completed. The referral to a treatment provider should be done with a written formal treatment plan identifying interventions that may be required, the length of time that these interventions may be required or the conditions under which the requirement will be deemed to have been satisfied. In addition, the arrangements for any treatment should be elucidated. Waivers and requirements for waivers should be defined in the treatment plan and details as to what will be reported to the department should be described. Characteristically, the optimal arrangement is for the officer to be referred to a program with which the provider has some kind of a relationship or, if not, the provider should develop a relationship with the treating program. For example, when the issue is an officer’s alcohol use, it may be appropriate to place the officer in a treatment program. Returning to work might be seen as contingent on his successfully completing the program and his continuing to work might be contingent on his maintaining sobriety and following aftercare requirements. In my opinion, contact with the treatment provider should be maintained. The provider should notify the police psychologist with information pertaining to dangerousness on the part of the officer. However, other information pertaining to treatment not directly affecting the officer’s status should not be sought by the police psychologist. It is essential to have an arrangement whereby the treatment provider notifies the psychologist if there is some deviation from the contract. When this occurs, the provider should confront the officer and determine whether in fact a formal deviation has taken place, and if so, this would be reported to the department. Otherwise, the contact with the department should be relatively minimal and when the officer has satisfied the requirements, this should be reported that at this point the officer would be considered fit for duty.

The period of time during which the department or the psychologist should monitor the officer would, in my opinion, vary with the condition. For example, one public safety worker suffered from diabetes that was in poor control due, in part, to his binging on food. He exhibited organic symptoms on occasion that seemed related to changes in blood sugar. The accommodation that was reached was that the officer would complete a log daily noting blood sugar level and the log was subject to audit by the chain of command and the departmental physician. Because the organic symptoms were disruptive and potentially dangerous, it was determined that such an accommodation would be required as long as the officer worked in a public safety position. At the other extreme are individuals who go through discreet programs, such as a program of brief therapy. Once the officer has completed the program, monitoring might discontinue as well; however, a relapse of problematic symptoms might be regarded as a basis for another FFD exam or, if it is clear that the individual could not be accommodated further, grounds for termination. Consider another example of a police officer who has 5 years of experience and goes out drinking one night with friends in a neighboring police jurisdiction. He becomes quite intoxicated and belligerent, and a bouncer asks him to leave, whereupon the officer flashes his badge, makes some vague threats, and displays his gun. This officer is then ejected from the club and becomes increasingly obnoxious to the point that club management calls law enforcement personnel to arrest him. That is the situation. The department is concerned about the officer’s judgment and restraint as well as its own reputation. They felt that they had enough data to dismiss this officer; however, they did refer this for a FFD. The FFD evaluation consisted of a clinical interview, history, a substance abuse screening inventory, an MMPI, interviews with the officer’s chain of command, as well as significant others in his life including his wife and a review of the documents surrounding the incident. It was determined that this man was not fit for duty, but that he could be considered a good candidate for treatment. Thus, it is at this point that the treatment plan comes into play. It was recommended that, if he were to be retained by the agency, he undergo treatment while being placed on nonenforcement status. Upon completion of the program his fitness for duty could be re-evaluated.

In light of the Americans with Disabilities Act (ADA), the law enforcement FFD evaluation is no longer limited simply to yes or no questions about fitness for duty. Often the determination is that certain steps must be taken in order for this officer to be fit or to maintain fitness. For example, an officer who has a drinking problem, but otherwise has a good record, might be considered unfit pending completion of an alcohol treatment program, and thereafter fit contingent upon the officer’s going into aftercare and taking Antabuse. Thus, it is often the case that some kind of condition be applied to the fitness for duty determination. This might be regarded as an accommodation that the agency can make with regard to the officer’s impairment to conform to the requirements of the ADA. If the officer cannot comply with this accommodation (e.g., the officer drops out of treatment, relapses, etc.), then a finding of permanently unfit for duty is warranted and seemingly within the requirements of the ADA. Where an officer is considered fit for duty contingent on completion of some program or some other kind of intervention, it is often the case that the evaluator develops a complex relationship between the officer, the department, and a treatment provider. The police psychologist should under almost all circumstances avoid entering a therapeutic relationship with someone they have evaluated for fitness for duty. Once fitness for duty is determined and the officer is found in some way conditionally fit, another aspect of this process involves monitoring of this individual and determining when and if it is appropriate for the officer to return to different levels of status within the agency (e.g., light duty, patrol duty but not narcotics, etc.) Finally, where persons have residual problems or where their severity of their symptoms waxes and wanes, or where they have a chemical abuse problem and relapse, it may be appropriate to redo the fitness for duty evaluation with that in mind.