In the last 2 years Dr Krähenbühl has written over twenty expert witness reports concerning the reliability and credibility of children’s evidence, competency and/or cognitive ability for the Family or Criminal Courts and have given evidence in the Family, Magistrates and Crown Courts in both England and Wales and Scotland.  In a recent article in Counsel Magazine Dr Krähenbühl expalins that she has “come to realise that there is a lack of understanding and awareness of the role of the expert witness and what he/she can and cannot do in the assessment of children’s testimony.”   She has also found that the quality of the information obtained during the interviewing of a child witness “varies considerably”.

This area of Expert Witness work requires highly specialised training and experience and Experts In Child Testimony are often asked to assess the Competency, Veracity and/or Credibility of a Child Witness.

CLICK HERE to read the full article.

- the status of the recommendations in the summary report;
- the titles, qualifications and work of psychologists as expert witnesses.

This document has been prepared in order to clarify the situation by restating the facts as they stand at present and reprinted with the permission of the National Centre for Applied Psychology.

Status of the recommendations in the summary report

Professor Ireland’s study was undertaken as the result of an initiative of the Family Justice Council (FJC) and was part funded by the Council. The report of the study has not yet been accepted by the FJC but was nonetheless released to the media and has since been referred to widely. It has generated considerable controversy. A number of methodological criticisms have been made of the study. The FJC is understood to have asked Professor Ireland to submit the report to peer-review of the methodology, findings and conclusions by the academic and professional community with a view to revision and eventual publication in a professional journal should it meet the requisite standards. In view of that procedure, those issues are not addressed in this document.

The FJC has clearly stated that it is currently developing consensus-based standards for expert witnesses and that it intends to publish them, for consultation, as soon as possible. The FJC has not referred to, promulgated or recommended use of any so-called “Ireland Criteria” for psychologists as expert witnesses. Therefore any reference to such criteria, as if they have been established and accepted, is premature.

Psychologists’ titles and qualifications

The Health Professions Council was given statutory responsibility for the registration of professional applied psychologists from July 2009. From August 2012, only psychologists who are registered with the Health Professions Council (HPC) may use titles protected by the HPC. These are:

Clinical Psychologist
Counselling Psychologist
Educational Psychologist
Forensic Psychologist
Health Psychologist
Occupational Psychologist
Sports and Exercise Psychologist
Registered Psychologist
Practitioner Psychologist.

The term ‘Chartered Psychologist’ refers to a grade of membership of the British Psychological Society (BPS). The Society is authorised to confer that title by its Royal Charter. Use of the title is legally restricted. It is granted only to psychologists who have achieved and maintain appropriate professional qualifications and experience which have been vetted by the Society.

Registration by the HPC and Chartered Membership of the BPS requires that the psychologist:

- has appropriate qualifications and experience,
- is in active practice according to the current professional standards, and
- has undertaken appropriate Continuous Professional Development (CPD).

However, a person does not need to be registered with the Health Professions Council if they do not use one of the protected titles.

A person does not need to be a member of the British Psychological Society if they do not use the title “Chartered Psychologist”.

Further, neither the HPC nor the BPS is authorised to protect the basic title ‘psychologist’. Therefore a person does not need to be in any way qualified in psychology to use the title ‘psychologist’.

That unqualified people can and do refer to themselves as ‘psychologists’ may create confusion for the public, other professions and the legal system. But unless such people cross other boundaries, such as laws concerning misrepresentation of qualifications, deception and fraud, they can continue to use the title legally and without hindrance.

Neither registration with the Health Professions Council (HPC) nor membership of the British Psychological Society (BPS) is mandatory for professional applied psychologists in the United Kingdom.

In other words, a psychologist who is registered with the HPC or a Chartered member of the BPS is definitely a fully qualified psychologist and currently in practice. But a psychologist can be fully qualified and currently in practice without either being registered by the HPC or being a Chartered member of the BPS. Registration by HPC or Chartered membership of the BPS does not qualify a psychologist as an expert witness nor does lack of registration or membership disqualify them from working as an expert witness.

A further consequence of the current legislation is that both fully qualified and experienced psychologists and people who are not qualified in psychology at all can legitimately refer to themselves as any kind of psychologist, so long as they do not use one of the protected titles. Thus titles such as:

Business Psychologist
Child Psychologist
Consultant Psychologist
Criminal Psychologist
Expert Psychologist
Graduate Psychologist
Neuropsychologist
Organisational Psychologist

and others are in use, both appropriately by fully qualified and experienced psychologists and inappropriately by some people who are not psychologists at all.

The use of the title ‘Dr’ by psychologists

Some psychologists are entitled to use the title ‘Dr’ in front of their name because they have a post-graduate research degree such as a PhD or a professional training degree such as a DClinPsy.

Other psychologists qualified as applied psychologists before it became customary to award Doctoral level degrees and may have older qualifications which nonetheless confer entitlement to register and practice.
Thus the title ‘Dr’ may or may not have significance depending on the individual psychologist’s training and experience.

Complaints about psychologists and misuse of ‘psychologist’ titles

The HPC can only take action on complaints about psychologists who are registered with it or about misuse of one of the protected titles. Likewise the BPS can only take action on complaints about its members or about people using the title Chartered Psychologist when they are not entitled to do so. The HPC and the BPS are not in a position to take action about people who call themselves ‘psychologist’ although they are not fully qualified or are not qualified at all.

‘Current practice’ in relation to psychologists as expert witnesses

Professor Ireland suggested that “there should be an expectation that psychologists providing court reports should continue to hold contracts with relevant health, government or educational bodies (e.g. NHS, Private Health, Prison Service, Local Authority etc) or demonstrate continued practice within the areas they are assessing (e.g. treatment provision).”

At present a significant and growing number of fully qualified psychologists, some of whom provide expert witness services, are self employed or work for commercial, not-for-profit or charitable organisations. This is likely to become more common because of the current reforms of public sector services and restrictions on public sector finances.

Further, professional psychologists working within public sector organisations are under increasing pressure to provide their core services more efficiently. Public sector contracts of employment may also limit the non-core work that an employee can undertake, such as expert witness work. As a consequence, opportunities to undertake such work may be very limited or even excluded. Recent pilot projects which have attempted to set up expert witness services within the NHS do not appear to have overcome perceived shortages in provision, perhaps for those reasons. Also, recent restrictions by the Ministry of Justice on the fees payable for expert witness services may make it uneconomic for public sector bodies to provide staff to provide those services, especially when the full cost of overheads is taken into account.
Therefore the suggestion that psychologists who are providing court reports “should continue to hold contracts have to be employed in relevant health, government or educational bodies” may seem attractive as a ‘rule of thumb’ but ignores the current realities of professional work in the public services. More generally it ignores the wide variety of relevant and valid professional practice undertaken by professional applied psychologists in the commercial, not-for-profit and charitable sectors.

Professor Ireland’s suggestion that in order to be an expert a psychologist should be able to “demonstrate continued practice within the areas they are assessing (e.g. treatment provision)” is seriously misleading. It appears to be based on an inappropriate analogy between psychologists and medical doctors. It is entirely appropriate and long-standing good clinical practice for psychologists to apply their expertise in assessment, diagnosis and prescription independently of practice as a therapist. In fact, many professional applied psychologists both within and outside the NHS are not therapists at all; they provide assessments, advice, supervision and other forms of consultancy. The suggested distinction between clinicians who are legitimate experts and those who cannot be experts because they only assess people in order to advise Courts is therefore a false distinction.

The issue of ‘current practice’ should be addressed by looking for:

- continuity of relevant professional practice (whether employed, self employed or voluntary) in preceding years;
- an appropriate level of experience in the area required (with reference to indicators such as Continuing Professional Development, including relevant training updates and skills development, teaching, professional and committee activity, or publications in peer reviewed journals).

As with all expert witnesses, the nature of the current practice required of a psychologist working as an expert witness will depend on the nature of the expertise required to advise the Court on the specifics of the case in question.

Copyright:  National Centre for Applied Psychology, 2012

In the first report of it’s kind in the UK, Professor Ireland looked at 126 Expert Witness reports from Courts in the Midlands, North and South of England. Professor Ireland, who is herself an Expert Psychological Witness, also came to some other rather surprising conclusions.  Including that two thirds of the reports reviewed in the research were rated as ‘poor’ or ‘very poor’ and that 90% of the Expert Witness Psychologists in the sample group were not currently in clinical practice.

Whilst Professor Ireland herself acknowledges that the report is a ‘preliminary study’ it does raise some challenging questions for those operating in the profession and also for solicitors and Courts who are responsible for instructing experts.

CLICK HERE to read a full copy of the report.

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Psychology medico legal report formatting

- All pages within the medico legal report should have a header containing your name & professional title as well as the details of the claimant/defendant the report is concerning and the instructing party(ies)

- Each page of the medico legal report should also be numbered in the footer e.g. Page 1 of 10

- There should be a contents page at the beginning of the medico legal report covering the different sections within the report and appendicies.  This page should also list page and/or paragraph numbers for the relevant sections.

- Ideally each paragraph and page should be numbered to enable specific sections of the medico legal report to be easily referred to and located.

- Each new section of the report should have a clear heading e.g. Summary of background to the case, My Opinion etc.

- The medico legal report should be on single sided A4 paper in font size 12 or larger, with double spacing to allow for note taking.

Psychology Medico legal report structure

- The structure of the report needs to be clear, logical and appropriate to the reader(s).  Please keep in mind that this could include other professionals as well as witnesses, jurors etc.

- A psychology medico legal report should start with a cover page that includes details of the action/case, any solicitor or court reference numbers, the version of the report e.g. draft 1 or Final, the date of the report, details of the claimant/defendant & instructing party(ies) and finally, your name, title, contact details and any reference.

- The medico legal report should start with a brief description of the subject matter.

- The report should then follow in chronological order.

- This principle should also apply to the way the content of the medico legal report  is presented i.e. background, analysis, conclusion & recommendations.  This will help the reader(s) to understand the evidence and how the Psychology Expert Witness came to their conclusions.

- To ensure the report is as clear as possible it is best to try and stick to one topic per paragraph, this will help avoid jumping from one point to another without concluding the topic and it will also help the reader(s) digest the contents of the report.

- As with any medico legal report, and to comply with the Civil & Family Procedure rules, the source of any content must be clearly identified.  This should include content based on knowledge as well as from information or belief.  The source of any information or belief should be given and where appropriate listed in the appendicies.

NB – Every psychology medico legal report must comply with the relevant procedure rules, whether it be for the Civil, Criminal or Family Courts.  There are also specific declarations that must be included such as a “Statement of Compliance”, “Statement of Truth” etc.  CLICK HERE to refer to the Ministry of Justice Procedure rules.

- Relevant graduate and/or post-graduate qualifications specific to the case in question

- Several years of relevant professional experience after initial qualification

- Articles having been published in recognised journals or publications relevant to the issues in hand

- Recent professional experience in the specialist area required for the case

The role of a Psychology Expert Witness is to provide a court or tribunal with specialist information which legal professionals would not be able to supply.  It is important to make it clear that the duty of an Expert Witness Psychologist is to the Court and not the instructing party(ies) i.e. the solicitor(s) or client(s).  In addition to individual Expert Witness Psychologist the definition was extended to include “Expert Teams”, as part of the 2010 extension to the Civil Procedure rules.  This was in recognition of fact that some cases may require teams of professionals from different disciplines to work jointly to produce a medico-legal report.

Psychology Expert Witnesses, like all other type of Expert Witness, are different to “ordinary witnesses” as Expert Witnesses are permitted to provide an opinion in a case as opposed to simply stating the facts.  To enable the Court to assess the reasons behind the Expert Witness Psychologist’s opinions they must supply the Court with the necessary information that lead them to those conclusions.  In addition to this, the opinion of the Psychology Expert Witness must be both relevant, as deemed by the “probative value” of that evidence, and admissible.

It is unusual for Expert Witness Psychologists to give an opinion about how a person without any mental health difficulties would react in certain situations or about the truthfulness of a person’s statement or evidence.  However, under certain circumstances, such as those involving possible malingering or when video and interview evidence given by a person conflict or matters concerning the reliability or veracity of a child’s testimony.  Under these circumstances a Psychology Expert Witness can provide an opinion based upon best practice for those situations such as the use of evidence based and standardised psychometric tests.

One important distinction to draw is that Expert Witness Psychologists are not allowed to give an opinion on a question of fact in the case, that is being considered by the judge or jury e.g. a Psychology Expert Witness in civil family cases cannot make suggestions as to the best placement of a child or confirm if an alleged case of abuse or neglect took place, as this is for the judge to decide.

The purpose of this procedure is to strike a fair balance between the need to protect a defendant, who has, in fact, done nothing wrong but is unfit to plead at his trial, and the need to protect the public from a defendant who has committed an injurious act which would constitute a crime if done with the requisite mens rea (R v Antoine [2001] 1 AC 340).

The procedure is set out in the Criminal Procedure (Insanity) Act 1964 as substantially amended by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 and by sections 22, 24, 25, Schedule 2 and the provisions in respect of unfitness to plead and insanity in Schedules 10 and 11 to the Domestic Violence, Crime and Victims Act 2004 for all defendants arraigned after 31 March 2005. Transitional provisions are set out at paragraph 8 of Schedule 12 to the 2004 Act.

The procedure has two stages:

1. Whether the offender is under a disability i.e. whether he is “unfit” to plead (section 4 Criminal Procedure (Insanity) Act 1964) ; and if so

2. Whether he did the act or made the omission charged against him (section 4A Criminal Procedure (Insanity) Act 1964).

http://www.cps.gov.uk/legal/l_to_o/mentally_disordered_offenders/

This is taken from a Consultation by the Law Commission (Consultation Paper 197). They are to publish a report in the summer of 2012 and are hopefully going to introduce a standard psychiatric assessment as the Pritchard Criteria is quite a controversial test.

The law on unfitness to plead is concerned with whether or not an accused is able to stand trial and, if not, the procedure that should be used to deal with that accused. Where the issue of unfitness to plead arises, the court does not consider the accused’s guilt, but rather two distinct issues. First, there is the question of whether the accused is “under a disability” which renders it inappropriate for him or her to be tried. This can be due to a disability caused by a physical impairment or a mental disorder. An example would be an accused who as a result of very low intellectual ability is unable to follow the process of his or her trial. Secondly, if the court finds that the accused is under such a disability, the jury must determine whether or not the accused did the act or made the omission charged There is no statutory provision for the legal test of whether or not an accused person is unfit to plead. The test itself, known as the Pritchard test, is covered by the common law.

In short, the Pritchard test requires that the accused must be able to: plead to the indictment; understand the course of the proceedings; instruct a lawyer; challenge a juror; and understand the evidence. If the accused is unable to do any one of these five things then he or she is unfit to plead. Along with the recommendations above, it also recommended that the criteria which comprise the legal test should be reformulated to include the ability to:

(a) understand the course of the proceedings at the trial so as to make a proper defence;

(b) understand the substance of the evidence;

(c) give adequate instructions to his legal advisers; and

(d) plead with understanding to the indictment.

Under the current law on unfitness to plead, section 4(6) of the 1964 Act provides that a court cannot make a determination as to the accused’s unfitness to plead “except on the oral or written evidence of two or more registered medical practitioners at least one of whom is duly approved”

“Registered medical practitioner” is defined in the 1964 Act as a “fully registered person within the meaning of the Medical Act 1983 who holds a licence to practice”. “Duly approved” means “approved for the purposes of section 12 of the Mental Health Act 1983 by the Secretary of State as having special experience in the diagnosis or treatment of mental disorder”.

Although the 1964 Act does not therefore specifically require that the evidence comes from a psychiatrist, in practice a finding of unfitness to plead has required a consensus of psychiatric opinion. However, a significant change under the Mental Health Act 2007 was to allow many of the roles under the Mental Health Act 1983 to be performed by a wider range of professionals by replacing the role of the “responsible medical officer” with that of the “responsible clinician”. Responsible medical officers were in practice usually consultant psychiatrists whereas the responsible clinician, who has overall responsibility for a patient’s case, can be any practitioner who has been approved for that purpose. Approval is not intended to be restricted to medical practitioners – it can extend to practitioners from other professions, such as psychology, occupational therapy and social work.

The Mental Health Act 1983 therefore now recognises a broader range of mental health professionals as having the necessary expertise to take clinical responsibility for a particular patient.

Despite this broader approach to professional roles under the Mental Health Act 1983, and the provision under the Mental Capacity Act 2005 for a wide range of people to make capacity assessments, ……that there should remain the requirement in criminal proceedings that an accused cannot be found to lack decision-making capacity except on the oral or written evidence of two registered medical practitioners, at least one of whom is duly approved under section 12 of the Mental Health Act 1983. In practice we therefore envisage that a determination as to decision-making capacity will continue to require evidence from at least one psychiatrist, particularly if, as we propose, there is a standardised psychiatric test to assess decision-making capacity.

However, the most important factor to consider before selecting an Expert Witness, is what type of Expert Witness is most appropriate to undertake the medico-legal report that is required.  This is best discussed with a solicitor as there are many different types of Expert Witness, who all have specialist training, skills and experience in different areas.  A solicitor will normally be able to advise you as to which type of Expert Witness is most suitable and can also ensure that the instructions given to that Expert Witness are most likely to assist in the case.

Once you have decided upon the type of Expert Witness that is required you can find an Expert Witness by various means, some of which are explained below:

Regulatory authorities and Governing or Professional bodies

Many professions, such as Psychology, have regulatory authorities and/or Professional bodies who regulate and/or represent the professional interests of their members. Some of these bodies may have a register or directory of Expert Witnesses available on their websites.  These lists of Expert Witnesses will contain the names of their members who offer Expert Witness services and may also provide details of their location and areas of specialty. There are two main Professional bodies for Psychologist:

- The Health Professions Council

- The British Psychological Society

Companies providing Expert Witness services

The provision of Expert Witness services is a very specialised area but there are several companies who can assist in choosing the most appropriate Expert Witness.  They are also often able to provide CVs, costs & timescales for Medico-legal reports undertaken by one or more of the Expert Witnesses on their database.

The main advantage of working with a specialist Expert Witness agency is that they will often have in depth knowledge of both the professional field in which they operate and the Expert Witnesses on their database.  This can mean that you can save valuable time and money as the Expert Witness service provider may be able to advise you on the most appropriate expert for the case and then manage the case for you to ensure that agreed costs and timescales are met.

Registers or directories of Expert Witnesses

If you would prefer to find the Expert Witness yourself and manage the contact directly with that professional, then you may wish to consider searching a directory of Expert Witnesses.  Please note that there are many such directories and the quality of the lists of Expert Witnesses that they contain as well as the rigour with which they are regulated may vary.  Many of these registers of Expert Witnesses contain details of numerous different types of professionals and do not specialise in any one particular profession.  Some useful Expert Witness directories include:

- Legal Hub – General database of Expert Witnesses

- Expert Witness – General directory of Expert Witnesses

- UK Register of Expert Witnesses – General list of Expert Witnesses

Qualifications, Training  & Professional Memberships

DClinPsych (Doctor of Clinical Psychology)

MSc (Clinical Psychology)

BA (Psychology)

AFBPS (Associate Fellow of the British Psychological Society)

CPsychol (Chartered Psychologist)

Health Professions Council Registered Clinical & Counselling Psychologist

United Kingdom Council for Psychotherapy Registered Psychotherapist

The Cardiff University Law School Bond Solon Civil Expert Witness Certificate

EMDR Training, Parts 1,2, & 3 & Pain Management

PROFESSIONAL EXPERIENCE

2003 – 2010     Consultant Clinical Psychologist, Head of Psychological Therapies, NHS & Social Care Trust

1985 – Present Part time private practice; assessment and treatment to patients referred by a variety of organisations following road traffic accidents/trauma, and patients experiencing mental health/psychological problems

1998 – 2003     Consultant Clinical Psychologist, Adult Mental Health and Chronic Pain, County HealthCare Trust

1989 – 2002     Clinical Director & Consultant Clinical Director, (Employee Assistance Provider), London, England

1987 – 2003     Consultant Clinical Psychologist in Learning Disability, Trust, London

1987 – 2000     Consultant Clinical Psychologist in Learning Disability, MENCAP, London

1987 – 1990     Consultant Clinical Psychologist in Forensic Learning Disability, Health Authority

1985 – 1987     Principal Clinical Psychologist in Learning Disability, London

1982 – 1985     Principal Clinical Psychologist, Adult Mental Health,

1980 – 1982     Senior Clinical Psychologist in Adult Mental Health, Health Authority

1978 – 1981     Consultant Psychologist (Part Time) to Local Authority Children’s Home, Social Services

1974 – 1980     Senior Clinical Psychologist in Adolescent & Child Psychiatry, Health Authority

1970 – 1972     Counsellor (Part Time) Solano County Children’s Home, California, USA

PUBLICATIONS

Dr A has published over 35 original psychological research and academic articles in numerous academic journals including; The British Journal of Clinical Psychology, British Journal of Guidance & Counselling, British Journal of Learning Disabilities, Occupational Health Psychologist, The British Journal of Medical Psychology, Psychodynamic Counselling, The Psychotherapist, Primary Care Mental Health, Stress & Health, European Journal of Psychotherapy Counselling & Health, Chinese Mental Health Journal, Clinical Psychology Forum, Counselling & Psychotherapy Journal, International Journal of Therapeutic Communities.

CONFERENCE PRESENTATIONS

Dr A has presented at over 25 national & international conferences for professional bodies including: The British Psychological Society, Division of Clinical Psychology, National Institute of Mental Health, World Congress forPsychotherapy,United KingdomCouncil for Psychotherapy,InstituteofPsychiatry London,EuropeanAcademyof Occupational Health, European Congress – Mental Health in Mental Retardation.

Her qualification include a BSc Honours Degree in Psychology/Biology, a Diploma in Clinical Psychology awarded by the Manchester Training Course in Clinical Psychology, an MSc in Psychotherapy from the University of Warwick, a Certificate in Further Educational Training, a Certificate in Consultation from the Tavistock Clinic and an MBA from Bristol Business School.

She is a member of the British Psychological Society, the Division of Clinical Psychology, Faculty of Child Psychology and is registered with the Health Professions Council (HPC)

Ms D is a qualified, registered user of a portfolio of psychometric tests and clinical procedures assessing intelligence, personality, trauma symptomatology and psychopathology in both adults and children. She regularly attends training courses and conferences to keep up to date with developments in the field.

She has extensive experience of working with children within the care system, both as a psychologist and foster carer, in supporting parents and families in dealing with children’s difficulties and developing parenting skills.  She employs an eclectic approach to assessment and therapy drawing on key psychological approaches including cognitive behaviour therapy, family therapy, solution focussed therapy and other psychotherapeutic approaches.

Prior to her move into full time independent practice, Ms M D was most recently employed as Head of Child & Adolescent Clinical Psychology at a Children’s Hospital, which provided a service both to child and adolescent mental health, learning disability, forensics, substance misuse and paediatrics.

Ms M D has over 20 years experience as an expert witness in public and private family law and has accepted over 300 instructions as a single joint expert on a range of issues including:

- Assessment of parenting ability with respect to childhood and personal history, learning disabilities and personality disorder, mental health, substance misuse, anger management and sexual boundaries/abuse.

- Assessment of family dynamics and relationship issues including domestic violence.

- Assessment of harm suffered by children or risk of future harm with respect to neglect and/or abuse (including emotional, sexual or physical).

- Assessment of attachment issues, separation, loss and sibling relationships.

- Assessment of the therapeutic and support needs of parents and/or children.

- Assessment of the prospect of change and the likely timescale for that change.

- Assessment of placement needs following a Care Order, including whether siblings should be placed together or separately and the nature and extent of contact with the birth family.

- Assessment of residence and contact disputes.

- Assessment of personal injury following physical or psychological trauma.

Ms M D has given evidence in court on many occasions and has attended relevant training courses in order to undertake this.