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Is your Expert really an Expert? How to choose a Registered Psychologist to be an Expert Witness in a Personal Injury Case
- Jul 31, 2023
- Latest Journal
by Dr Kathryn Newns and Dr Karen Addy
Background – What does a HCPC Registered
Psychologist Expert Witness do?
Expert witnesses are utilised to help provide opinion on matters about which the judge could not form a decision unaided. They owe a duty to the court to act independently in their role to provide information about complex issues. As HCPC Registered Psychologists, we are often called upon to determine whether someone’s difficulties following an incident represented a clinically significant difficulty; whether these difficulties pre-existed the index event; to ascertain any vulnerabilities to mental health difficulties; and to consider attribution, treatment if required, and prognosis.
In order to carry out our duties to the court we are required to undertake a full psychological examination of a client, going back to childhood in order to ascertain any psychological vulnerabilities, discussing any previous traumas and establishing how the individual usually copes with adversity, examining other life stressors around the time of the index event; as well as how they reacted at the time, immediately afterwards, and how the presently function. We would ask whether help was sought for psychological difficulties, how these difficulties impacted daily living, and whether any psychological treatment had been successful. In addition to interview, we may use psychometric assessments, GP records, hospital records, therapy records, and other medical reports in order to form our opinion.
Clinical Psychologists are frequently instructed in low value, fast track claims, for example low speed traffic accidents (assessing, often for “PTSD” or travel anxiety); trips and falls (being asked to examine fear of falling, for example); and workplace accidents (assessing anxiety at work, or other psychological ramifications of injury). In more complex cases, Clinical Psychologists may be instructed in cases involving chronic pain, clinical negligence, and significant life altering injuries.
Experts who are not experts
It seems that hardly a year goes by without an expert being criticised for failing to fulfil their expert witness role – being biased; lacking the relevant experience; and even lacking a basic understanding of the role of the expert witness.
In 2019 a high profile fraud trial collapsed as the expert witness was judged not to be an “expert” – he had little or no understanding of the duties of an expert, had no expert witness training, and lacked appropriate academic qualifications (and in fact could not recall if he had A-levels). 1
GP expert, Dr Zafar, was described by a judge as having “remarkably” run a system which enabled him to see a client and write the report within 15 minutes, referring to this as a “report writing factory”2. He recklessly changed a report without reassessing the claimant, adopting the symptoms and prognosis as suggested by the solicitor. The Court of Appeal in Dr Zafar’s case noted that a false statement supported by a statement of truth (whether given recklessly or dishonestly) is a serious offence and should have resulted in a custodial sentence. Dr Zafar was struck off the medical register.
Of note as well, in the family division in 2023, a case highlighted the difficulties inherent in instructing a “Psychologist”, due to this not being a protected title.3
Training and Accreditation for Experts
So how does a solicitor avoid inadvertently using a reckless expert witness or one who does not understand their duty to the court? How do they know whether the expert they are instructing knows their duties, and has the relevant qualifications, experience and knowledge?
There is no universal regulation of expert witnesses in England or Wales. The Academy of Royal Colleges published guidance for expert witnesses, endorsed by 9 healthcare professional bodies and regulators. Key to this guidance is that healthcare professionals who act as expert witnesses should undergo specific training for being an expert witness and should undertake regular Continuing Professional Development in expert witness work. The British Psychological Society was not one of the professional bodies who endorsed this guidance.
Especially given the lack of accreditation of expert witnesses, it can be difficult for the solicitor to ensure that their expert is fully trained as an expert witness.
It can also be difficult to ensure that the professional you are using are fully accredited with an appropriate professional body. As noted above, the title “Psychologist” is not protected, and instructing parties run the risk of instructing an unqualified mental health professional. As the generic title of psychologist is not protected this means the title “psychologist” may be used by an individual regardless of their regulatory status, or qualifications. Clinical Psychologists, Forensic Psychologists, Health Psychologists, Educational Psychologist, Sport and Exercise Psychologist and Counselling Psychologists must be registered with the HCPC as “Practitioner Psychologists”. If the instructed expert does not have one of these titles, and is not registered with the HCPC, then there is no guarantee that they are a fully qualified psychologist. If a psychologist is registered with the HCPC their qualifications can be easily checked via https://www.hcpc-uk.org/check-the-register/ to ensure they are working in their area of expertise (for example a registered occupational psychologist is not providing evidence on forensic issues)
Training in expert witness work specifically for psychologists is available through the British Psychological Society, although no accreditation currently exists through that professional body and there is no requirement for psychologists taking expert witness training to be HCPC registered, this means people using the title psychologist may have had expert witness training but not have had relevant professional training to be a HCPC registered practitioner psychologist
The Expert Witness Institute (EWI) have a rigorous certification process that involves practical assessments, demonstration of an ability to write a CPR compliant report, and evidence of being able to undertake a joint statement, understand the joint statement process, and perform well under cross examination. The accreditation must be renewed every 5 years. The EWI do ensure all those on the certification programme who are psychologists are registered with the HCPC.
Bond Solon alongside Cardiff Law School also have a thorough approach to accreditation involving training and examination in law and procedure; report writing, and cross examination, however, unlike the EWI certification there is no requirement to renew this although certified experts must undertake regular CPD with Bond Solon to maintain that accreditation. It is important to note that (at the time of writing) there is no requirement for psychologists applying for certification with Bond Solon to be on the HCPC register.
The Risks and Benefits of using Agencies
When utilising an agency to instruct an expert witness it can be particularly difficult to ensure that due diligence has been undertaken. Ideally, agencies would ensure that their experts: have the necessary qualifications; have undertaken expert witness training; are able to write a CPR compliant report; and undertake ongoing CPD in expert witness work. Sadly, many agencies and associate groups do not require their experts to have undertaken any expert witness training or accreditation. Furthermore, many agencies insist on paying very low fees for Psychology reports, giving a significant financial disincentive for an expert to seek adequate training.
Agencies are often preferred by solicitors for low value cases, and in some cases can be very helpful in terms of deferred payment terms; scanning and organising paperwork; and sourcing multiple experts for a case. However, unless the agency is undertaking checks on the experts that they are using and paying that expert a fair price for their work, it is difficult to guarantee that the expert that they put forward for a case is appropriate.
What Next? The Solution
Instructing parties should ensure that their expert has undertaken the appropriate expert witness training. They must also confirm that any Psychologist that they instruct is fully regulated and qualified and on the HCPC register. (this can be checked via https:// www.hcpc-uk.org/check-the-register/)
Asking for an example report is a good way to ensure that the expert is able to produce a good quality CPR compliant report. Checking the expert’s CV for their training in expert witness work is essential. Experts would benefit from taking note of the opinion raised by the Court in the case of Re C (‘Parental Alienation’; Instruction of Expert) [2023] EWHC 345 (Fam) where the view was expressed that experts’ CVs should be well structured in order to transmit information, for example regarding training and qualifications “crisply and clearly”. However, better still is the reassurance that is afforded by expert witness certification alongside ensuring that the Psychologist is on the HCPC register and working within their field of expertise.
References
1. R v Marcus Allen & Ors
2. Liverpool Victoria Insurance Co Ltd v Zafar [2019] EWHA Civ 392.
3. Re C (‘Parental Alienation’; Instruction of Expert) [2023] EWHC 345 (Fam).
Authors
Dr Kathryn Newns
Clinical Psychologist
Dr Newns is the Clinical Director of Applied Psychology Solutions and is on the Board of Governors of the Expert Witness Institute. She is a Certified Fellow of the EWI and holds the Bond Solon/Cardiff Law School certification.
She offers medico legal assessments throughout East Anglia, Sussex and online, and is able to travel nationwide. She offers training and mentoring in expert witness work.
Contact
Tel:01223 803 793
Email: team1@apsy.co.uk
Website: www.appliedpsychologysolutions.com
Dr Karen Addy
Consultant Neuropsychologist /Clinical Psychologist
Dr Addy has a busy medico legal and rehabilitation practice in North Wales specialising in neurological conditions and acquired brain injuries. She offers medico legal neuropsychological assessments throughout North Wales and North West England. She is a Certified Expert with the EWI and holds the Bond Solon/Cardiff Law School certification.
Dr Addy also works part time as the clinical practice director of neuropsychology training programmes at Salmons Institute of Psychology, Canterbury Christ Church University.
Contact:
65 High Street, Bangor, Gwynedd, LL57 1NR,
Tel: 01248 719750
Email: Enquiries@nwneuro.co.uk - Website: http://www.nwneuro.co.uk/medico_legal_services.html