EXPERTISE IN BEING AN EXPERT

EXPERTISE IN BEING AN EXPERT

Nigel Eastman

Emeritus Professor of Law and Ethics in Psychiatry

Honorary Consultant Forensic Psychiatrist St George’s, London University

INTRODUCTION

• Not something ‘to take up in retirement’, without training If do,

• ‘how to take it up in retirement’, or …

• ‘how can it be best continued/developed in retirement’? • There is ‘expertise in doing expert witness work’

• Within ‘_{law and psychiatry’, or} ‘psycho-legal studies’(an

‘_interface’ _discipline)

• Note the myth ‘you only need to be a good clinician,

because the courts regulate and direct expert evidence’ (see Prof Roy Meadow)

So …

• ‘What’ is it? • How to do it?

• [Whether to do it?]

Forensic Psychiatry

• Clinical forensic psychiatry • Legal psychiatry

So

• All psychiatrists are/cannot avoid being‘forensic psychiatrists’

But

• There ‘is particular expertise in being an expert’ (that is, in offering expert medical evidence into any legal

Summary

• ‘Law and psychiatry’ as an interface discipline [‘what is it?’]

• Developing/extending expertise at the interface [‘how to do it?’]

• Practical matters re establishing a practice [‘more of how to do it?’]

• Peer review and appraisal [‘yet more of how to do it’] and

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‘Medicaland’ and ‘Legaland’

• Difference by ‘_{raison d’etre}’

• Difference by skills and knowledge • Difference by process

• Separate ‘lives’ • Occasional ‘visas’

• Similar words (often); but different languages and meanings

• ‘Going to Legaland’

• Different legal domains and sub-domains

• Different psychiatric domains (fields and diagnoses) • ‘Psycho-legal case types’

Medicine pursuing welfare

and

‘Paradigm’ of legal definition, or question and psychiatric evidence relevant to that definition, or question …

ie mental disorder (defined psychiatrically) may properly be seen (sometimes) to be relevant to ‘proof’ of particular construct, legally defined; or to answering a given legal question

But with …

Profound difference of processes of inquiry … • investigative

• adversarial

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‘

_{Law and Psychiatry}

’

_{as a Discipline}

[The discipline that lies at the heart of there being ‘expertise in being and expert’]

• ‘Meeting’ of particular medical and legal domains

• Various legal definitions of ‘mental disorder [within civil, including medical and mental health law; criminal law]

• Various legal questions to which mental disorder may be relevant

WITH

• The problem of apparent‘common interest’ sometimes • The problem of apparent ‘common constructs’

BUT • Not

With …

• High risk of ‘values incursion’into evidence Where …

• Tight law and process may serve to limit ‘values incursion’

• Loose law allows great room for ‘values incursion’ That is …

• high risk of ‘bias’ (conscious or unconscious)

[May even be highly politicised, eg within mental health law]

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SO …

• Nature, methods and social roles of law and psychiatry differ

• ‘Uncomfortable bedfellows’

• Differing purposes of law and psychiatry determine different constructs and methods of inquiry

AND

• Law uses context specific artefacts; psychiatry offers constant reality

AND

• There is a ‘problem’ re psychiatry and law pursing welfare and justice respectively

Where…

Different branches of psychiatry experience differing -nature

-extent of

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Compare…

Forensic psychiatry

Child and family psychiatry Old age psychiatry

Hence:

There is ‘expertise in being an expert’; beyond mere

‘tricks’or a ‘survival kit’ Which requires …

understanding of the interface between disciplines And …

Becoming a ‘frontiersman’

Whilst ensuring: awareness, and limiting of‘values incursion’, and ‘bias’

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Practical Relationship Between Law and

Psychiatry

• ‘Bilateral’

• Law using psychiatry; psychiatry using law Crucial is …

• Avoiding ‘contamination of roles’[with different drivers towards contamination in the two contexts]

Co-operation or Contamination of Role;

including ‘The Problem of Bias’

• Boundaries • Vigilance

• ‘Effecting’ versus ‘affecting’ justice • An eye on ‘the result’?

• Personal ‘values contribution’

• Especially with diagnoses and states with low ‘fact/value ratios’ (Fulford)

• From welfare to (in)justice • Values insight as crucial

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Example

• Broadly defined MH law facilitates this

• Much room for psycho-legal gymnastics by courts, tribunals and MHS practitioners

Bias

Arising from:

• ‘within’ the expert

• as a reflection of his/her ‘relationship’ with the subject of assessment

• personal belief (for example about ‘just deserts’ versus ‘excuse by way of mental disorder’)

• from pressure exerted by the side that has instructed the expert, the adversarial system within which expert

evidence is placed.

• or from a wish to please instructing lawyers (whether financially or otherwise motivated);

• from the very nature of the adversarial system operated within common law jurisdictions; which has an inherent tendency to polarise opposing opinions

Effected via:

• frank selectivity in regard to data, either from medical records or legal papers, can be subtle in terms not of ‘exclusion and inclusion’ but ‘relative emphasis’.

• Drafting in terms of ‘constructing a case’ by way of

emphasis of particular data, or its particular interpretation of data.

• expressing, or holding an opinion on ‘the ultimate legal issue’

DEVELOPING EXPERTISE AT THE INTERFACE

The Royal College Approach

• Training is central

• Training ‘within’ psychiatry, aided by lawyers

• Training including, but beyond knowing legal rules and procedures relevant to expert evidence

Plus

• Experience

• Emphasising co-operation and avoiding contamination [Not ‘dogs learning tricks of survival’]

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RCP Report on Court Work

• Introduction • Background

• The Psychiatric Legal Interface • Psychiatric Duties

• Duties of Psychiatric Experts

• Training and Continuing Professional Development • The Structure of Reports

• Fees and the Commissioning of Reports • Quality and supply

ACTIONS

• Relates to all Psychiatric Practice • Plus Expert Psychiatric Practice

• Psychiatric training – external eg College • Psychiatric training – personal

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All psychiatrists should have a basic competence in report writing as they may well be called upon to give evidence as an expert witness, particularly in relation to mental health tribunals.

The writing of reports for tribunals should be an integral part of psychiatrists’ training for section 12 approval.

Core competencies for professional witness work that apply to all psychiatrists and for expert witnesses in particular specialties should be developed by each faculty as part of core and specialty training

.

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A psychiatrist must be clear in their own mind in which role (expert or professional) they are engaging in any legal process, and be clear with the court when they are

Psychiatrists presenting themselves as expert witnesses should ensure that they have induction into expert

witness work, particularly in those sub-specialties frequently called upon to assist legal processes (Academy of Medical Royal Colleges, 2005).

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Psychiatrists acting as expert witnesses should have relevant knowledge of court procedures

.

• Honesty, impartiality, objectivity and respect for justice are the over-riding duties of an expert witness,

regardless of the party who instructs them.

• In criminal matters, psychiatric experts should show a willingness and ability to work for both defence and prosecution as this may indicate a general attitude of objectivity and the reports produced would be

uninfluenced by whoever has commissioned the report.

• The expert should not take instructions that go beyond psychiatric expertise, e.g. in providing opinions as to whether an individual is telling the truth ...

• The standard for the validity of psychiatric testimony has not been tested in the courts therefore it is most helpful to apply the “reasonable body of psychiatric opinion” test.

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The College, through its educational channels, should

press for more comprehensive teaching of medico-legal and ethical matters in medical schools as part of the core curriculum

It must be part of generic psychiatric training that trainees are not only taught about the interface between

psychiatry and the law but are required to prepare reports for legal proceedings and have experience of appearing before Mental Health Tribunals.

By the time they obtain the Membership qualification they should be competent as basic professional witnesses.

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It should be the responsibility of each Faculty within the College to develop a core curriculum, based on core competencies, for the training of psychiatrists within the faculty on legal issues relevant to them as practising professionals and as experts, and to ensure that legal matters are not only taught but that the trainee has experience of putting them into practice.

Once in post as Consultant Psychiatrists some part of their CPD should be geared to maintaining competence as professional witnesses.

Each Faculty of the College should advise their members that, before presenting themselves as expert witnesses or agreeing to appear as expert witnesses, they should have attended a relevant course or courses approved for continuing professional development (Academy of

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Before preparing a report an expert should:

Other than in the most straightforward cases, have a detailed discussion with the instructing solicitor to clarify the questions being asked of the report.

Experts are advised to write their reports in a form that is recognised as standard for their area of expertise and that is helpful to those who commissioned the report and to the court.

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Those working in legal processes should set up

mechanisms to receive feedback from the lawyers

involved so that they can audit and improve their practice in this area.

But…

Crucial is the understanding of the relationship between law and psychiatry generally

And specifically within the specialty concerned

And specifically within the ‘psycho-legal case’ type at hand

And knowing when to work in conjunction with a ‘ Psycho-lander’

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So…

Back to Medicoland and Legaland, Regions and Sub-regions

All at differing sections of the frontier between Medicoland and Legaland

Particular diagnoses or mental states will determine particular psycholegal case types, and skills

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Mental Health Skills at the Psycho-Legal

Interface

• Mental health knowledge of the ‘psycho-legal interface’ • Acknowledging the ‘legal definitions’ applicable in a

case

• Acquaintance with use of ‘evidence’ beyond mental health data

• Skill in ‘translation’ and communication

• ‘Keeping the boundary’, through knowledge of the interface

• Minimisation of influence of ‘personal values’, holding to

‘accepted science/art’ (not caring about the outcome!) • Being explicit re data and reasoning adopted

Oxford Handbook of Forensic Psychiatry

)

Re

• Process of assessment • Report writing

• Giving expert evidence Etc...

And

DEVELOPING A PRACTICE

• It really does amount to ‘developing a practice’ • Mainly through recommendation and reputation

• Membership of ‘institutes’ or ‘being on websites’ or ‘being with an agency’ doesn’t really do it alone (?)

• Stick to what you really know about (avoid cases where a different expert is better equipped)

• Understand the lawyers’ issues, and give answers which ‘assist’ them towards addressing them

• Don’t be ‘swayed’ within the adversarial system • Honesty and objectivity are necessary

• Be ‘collegiate’

• ‘Chambers model’

– Individuals work independently within a group – Benefit from peer support and shared resources – Intellectual (and physical?) resources

– LLP

– Governance

– Common referral point

– Allowing specialisation and ‘passing on’ of cases – ‘Conjoint’ working on cases

– Peer review processes – Mutual education

– Training of doctors and lawyers (eg Joint Seminars with Doughty Street Chambers; workshops; Handbook of Forensic Psychiatric

Forensic Psychiatry

Chambers

PEER REVIEW AND APPRAISAL

• Utilise specific peer review and appraisal within overall appraisal, with oversight by‘responsible officer’

REVALIDATION AND LICENSING

• Necessary for medicolegal practice

• See College position on licensing, including for medical members of Mental Health Tribunals

• Medical insurance requirement

• Practice may be even solely ‘medicolegal’ • Is‘_{first medical’}

• with specific appraisal of medicolegal expertise (as a ‘frontiersman’)

RCP Guidance

Satisfying revalidation requirements specifically in regard to expert witness work in terms

(1) ‘continuing professional development’ by way of regular updates in witness skills, new protocols, relevant case law and CPD events on medico-legal topics in general; (2) ‘quality improvement activity’, which might include

reflections on improvements gained by reading other experts’ reports, meetings of experts and preparation of joint statements, as well as the effects of testing one’s evidence in conference or court, including by way of case based discussions (see below);

(3) recording of ‘significant events’ in terms, for example, of missing a critical alternative or contrary opinion which is

then exposed in conference or at the court stage of the examination of evidence;

(4) ‘feedback from colleagues’ to include feedback from lawyers (ideally including judges), and/or from other

relevant professionals, including other experts within a case;

(5) ‘feedback from clients’ (in this context they are not

‘patients’), in terms of the style of the interview, though not any opinions expressed in the report:

(6) review of complaints and compliments, including

through letters received from solicitors and barristers, or comments made by judges (eg in judgments), which are available in writing, together with any reflections or actions taken as a consequence.

Case based discussions

Critiquing in detail

• by other doctors undertaking similar work • within PDPs

• within a medical chambers

CONCLUSIONS

• Nature, methods and social roles of law and psychiatry differ

• Law and medicine make uncomfortable bedfellows • Differing purposes determine different constructs and

methods of inquiry

• There is a ‘problem’ re psychiatry and law each pursing welfare and justice

• Tight law and process limits ‘values effects’, also bias, of psychiatry and psychiatrists

• Extraordinary ethical care is required in operating at the interface

• There are extraordinary ‘pressures’ operating upon experts from within the legal process

• Expert witness work is ‘part of medical practice’ • It must be subject to peer review

• It requires appraisal towards revalidation

• It is referable to the GMC (and cases are referred) • The highest standards of probity are required

• It is real ‘tiger country’

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TRAINING!

Not as…