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25 JUN 2018

The risks to litigants in person when cross-examining psychologist expert witnesses

Jaime Craig

Consultant Clinical Psychologist & Expert Witness

The risks to litigants in person when cross-examining psychologist expert witnesses

This article originally appeared in the January 2018 issue of Family Law

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Many psychologist expert witnesses, from professional bodies (British Psychological Society) to more informal expert witness networks, have raised concerns about the impact of this practice. The concerns fall into three main areas: the potential harm of conducting such a cross-examination to the litigants in person (LiPs) in question; potential breaches of ethical conduct for the psychologist expert; and the potential impact on the quality of the evidence. This paper hopes to set out these issues and invites discussion as to potential guidance and remedy.

Impact on the LiP and potential for harm

Put plainly, in order to properly answer cross-examination the psychologist expert runs the risk of causing avoidable harm. Moorhead and Sefton (2005) list 11 indicators of vulnerabilities for LiPs (being a victim of violence, depression, alcoholism, being a young lone parent, drug use, history of imprisonment, mental illness, living in temporary accommodation with children, illiteracy, terminal illness, involvement with social services). Trinder et al. (2014) found that around half of the LiPs in their observation sample of 151 cases in private family law proceedings suffered from one or more of these vulnerabilities. They also noted other vulnerabilities in this sample including developmental disorders (ASD ADHD), poor emotional regulation, learning difficulties and extreme nerves/anxiety.

Although some safety net was envisaged in the form of the legal aid exceptional funding scheme, there have been criticisms of this scheme. In the year April 2013-March 2014, 821 applications for exceptional case funding were made in the area of family law, only nine of which were granted. In her review Trinder (2015), citing reported cases, highlighted examples of highly vulnerable litigants including those who have not qualified under the current exceptional funding scheme, for example, one case where a litigant had hearing, speech and intellectual difficulties and was unable to read or write. Miles, Balmer & Smith (2012) examined data from the Civil and Social Justice Survey and found the prevalence of mental health problems to be higher than the government’s take up of exceptional funding suggests. They note that we might therefore anticipate a higher proportion of LiPs seeking exceptional funding on the basis of mental health. The Public Law Project Exceptional Funding Project which provides guidance and information about making EFF applications is currently producing a ‘how to’ guide for family law cases. It is hoped that this might help demystify the process and to encourage more appropriate applications.

It is reasonable to assume a significantly higher rate of such vulnerabilities in LiPs about whom the court has felt a psychological assessment is required. Such LiPs are necessarily vulnerable due to a variety of co-occurring factors including their mental health, personality difficulties, learning difficulties, developmental delay, poor affect regulation etc. These are all common features that psychologist experts are asked to consider. It is to be hoped then that those cases in which LiPs are assessed by a psychologist expert witness should fall within the criteria for ECF when they fall short of legal aid currently available.

When LiPs wish to challenge their psychological assessment it is likely that this is because they disagree with either the nature or the degree of their assessed difficulties. In the latter case it may be necessary to challenge an overly negative perception the assessing psychologist has drawn – the response to which may likely be a restating of ‘deficits’ and/or a rationale for the parent’s limited capacity to effect change within the timescales of the court. In the former scenario a LiP may be challenging the way in which their difficulties have been conceptualised. They may have a preferred understanding of their difficulties which is more ego-protective or less personally stigmatising. It will be crucial to consider, therefore, their capacity to tolerate in verbal cross-examination what may be acute threats to their understanding of their own difficulties and capacity. The reflective capacity to tolerate such threats to their self-concept may well be impaired and in the highly charged, high stakes context is likely to be further impaired.

Giving this verbal evidence necessarily means the psychologist expert confronting an assessed LiP with potentially harmful or re-traumatising, highly charged and emotive content that has emerged in psychological assessment. Psychologist experts are highly skilled in gaining insights into the psychological functioning of the individuals they assess in the broadest sense; eliciting acutely sensitive information that may be defended against and overcoming reporting biases, avoidance etc. The assessment is by its very nature therefore intrusive and exposing. The psychological formulation arising from this assessment gives an explanatory framework which will have a different salience to an individual than a diagnosis for example, as it draws together predispositions, early experiences (including developmental trauma) and mental health symptoms, interpersonal functioning to an understanding of the person as a whole.

This information can be acutely shaming and distressing not just because of the information included (eg abuse experiences) but also because it may include very challenging changes in perception of one’s own difficulties, abilities, motivations and crucially one’s capacity for change. These assessments are therefore extremely useful to the family court but extremely potent. The exercise of reading these assessments may be challenging enough as they may confront an individual with an understanding not previously considered consciously and does so without the support of an ongoing therapeutic relationship with the psychologist. There is clearly the potential for re-traumatising as this information is shared and but this risk may be heightened by the LiP being involved in challenging this directly in court. To question such assessments ‘in the first person’ in the context of typically highly stressful proceedings is a uniquely vulnerable situation in which there is a significant risk of potential harm. Article continues below...

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Ethical conduct for psychologist experts

In giving expert evidence the psychologist expert necessarily has an overriding duty to the court, this includes being available to give verbal evidence under cross-examination. This rigour is crucial in fulfilling this duty. However, the psychologist maintains a duty of care to the individual being assessed, whether child or adult and must consider issues of vulnerability and the consequences of an adverse opinion (BPS/FJC, 2016). All practitioner psychologists are guided by codes of ethics and conduct – British Psychological Society and/or HCPC. There is a unique challenge during cross-examination by an assessed LiP which potentially risks psychologist experts falling foul of their codes of ethics and conduct.

‘Psychologists should: (i) Avoid harming clients, but take into account that the interests of different clients may conflict. The psychologist will need to weigh these interests and the potential harm caused by alternative courses of action or inaction.’ Code of Ethics and Conduct - Guidance published by the Ethics Committee of the British Psychological Society August 2009 Standards of general responsibility
Specifically for psychologists as expert witness psychologists, BPS Guidelines and Procedure for England and Wales 2015 reaffirms the need for psychologists undertaking expert witness work to adhere to this code and notes:

‘Failure to do so can result in disciplinary proceedings and professional sanctions. Expert witnesses will find themselves working in sensitive areas as part of their role and the need to protect clients from unsafe practice from psychological expert and professional witnesses is paramount.’
The regulatory body for practitioner psychologists, HCPC, includes within their Standards of conduct, performance and ethics 2016 the directive that registrants must promote and protect the interests of service users and carers, identify and minimise risk, and specifically: 

‘You must take all reasonable steps to reduce the risk of harm to service users, carers and colleagues as far as possible. You must not do anything, or allow someone else to do anything, which could put the health or safety of a service user, carer or colleague at unacceptable risk.’
There is an inherent challenge to the psychologist expert which is likely to involve moment by moment consideration of the impact on the LiP in them giving their verbal evidence which may impact on the quality of their evidence. They are uniquely placed to appraise this as the assessing clinician. It may be necessary for the expert to alert the court to such potential and in particular if in their professional opinion they would be unable to adequately answer questions directed by an assessed LiP without putting their mental health at unacceptable risk or if the vulnerability of the LiP is such that they would be failing in their duty to protect them from harm or unsafe practice. Clearly there is a danger of circularity as it would require the court to accept this psychological evidence (of potential harm) in advance of cross-examination of the evidence. It may be appropriate to include as a matter of course in letters of instruction specific questions as to the potential impact of conducting cross-examination on a LiP to ensure that this issue is highlighted early and given consideration by the court.

Impact on quality of evidence

Williams’ (2011) review of international evidence found a complex picture but widespread difficulties in LiPs’ understanding legal and evidential processes. Specifically for family cases they reported that the weight of evidence is that self-representation is associated with longer durations as cases were less likely to settle. Trinder (2015) notes that there are likely to be a range of factors that shape whether or not the LiP is disadvantaged or not in proceedings, which include both the competence and capacity of the LiP and the approach or supportiveness of the court. Duffield et al. (2017) note the challenge for family solicitors faced with LiPs who may find they are unable to put their personal feelings aside.

Several psychologist experts raise the question as to the capacity of a LiP, about whom the court has felt it necessary to have an expert assessment of their mental health, personality and/or cognitive vulnerabilities, specifically to conduct an effective cross-examination. There are parallels with Q v Q; Re B; Re C (Private Law: Public Funding) [2014] EWFC 31, [2015] 1 FLR 324 if the capacity of the LiP to conduct a cross-examination is so impaired by their vulnerability, or the vulnerability inherent to the dynamic/power imbalance with the witness (in this case the psychologist expert) is such that Arts 6 and 8 rights risk being breached.

For example, psychological difficulties and the emotional salience of the material covered, may lead to LiPs focusing on narrow issues that for them may feel unresolved in order to challenge the psychological opinion, rather than on those with most salience in terms of the decisions before the court. To do so dispassionately when the material in question is one’s own personality or mental health is likely to be a highly challenging task for the most resilient and well-rounded individual.

Clearly there is also the potential for the court to gain a perspective during this cross-examination process into the LiP’s reflective capacity and their ability to demonstrate insight or regulate their affect in challenging situations. However, this would be a very delicate line for anyone to walk as to challenge an expert’s assessment necessarily demonstrates an unwillingness to accept the assessment which may be seen as a lack of insight if the opinion of the expert is preferred by the court. What is crucial here is that those litigants who are represented by legal professionals will be protected from such an emotionally charged opportunity and therefore the LiP is potentially disadvantaged. This disadvantage is two-fold. They may be deterred from conducting rigorous cross-examination by wishing to appear insightful or calm/composed. Secondly they are placed in a situation in which lack of insight or impaired capacity for emotional regulation may be evident in a way that would not occur for a represented litigant.

Quality/availability and supply

There is a further potential impact on quality of evidence if, as canvassed opinion of experts suggests, concern about this practice adds to the growing reluctance by experts to take cases involving LiPs. Whilst it should be noted that the central concern is not the impact on the expert witness, the process of cross-examination by LiPs brings a range of ethical questions and dilemmas which some experts may opt to avoid, reducing the availability to good quality expert opinion and threatening the evidential base. Those experts in high demand may feel disinclined to accept instructions which already carry an inevitability greater level of administrative/logistical complexity, more potential for blurring of boundaries – factors typically assisted by an instructing solicitor.

Possible ways forward

Section 31G(6) of the Matrimonial and Family Proceedings Act 1984 (set out in Sch 10 to the Crime and Courts Act 2013) appears relevant here: 

‘Where in any proceedings in the family court it appears to the court that any party to the proceedings who is not legally represented is unable to examine or cross-examine a witness effectively, the court is to – (a) ascertain from that party the matters about which the witness may be able to depose or on which the witness ought to be cross-examined, and (b) put, or cause to be put, to the witness such questions in the interests of that party as may appear to the court to be proper.’
The guidance within the new Practice Direction 12J Child arrangements and contact orders: Domestic abuse and harm may offer examples of potential remedies which could be considered in this scenario. In these circumstances: 

‘… each party can be asked to identify what questions they wish to ask of the other party, and to set out or confirm in sworn evidence their version of the disputed key facts; and the judge should be prepared where necessary and appropriate to conduct the questioning of the witnesses on behalf of the parties, focusing on the key issues in the case’.
Within current financial constraints, written questions in advance of hearings may be the least psychologically harmful way for an assessed LiP to challenge the expert psychologist evidence. However, without some guidance the feedback from experts is that such questions can be high in number, repetitive or fail to focus on the salient issues. This adds to time taken to respond. However, currently there is some variability as to who offers such guidance and supports this task. This would be additional workload for the legal professionals involved.

Following on from responses to written questions, further challenge to opinion will require cross-examination. In such a scenario it may be appropriate for questions to be put on behalf of the LiP, most likely by the judge who may adopt a more inquisitorial approach. However, there may be circumstances when these steps alone may not adequately address the challenge. Sir James Mumby, in Q v Q; Re B; Re C (Private Law: Public Funding) (above) notes that it will not always be appropriate for the judge to do the questioning: 

‘In some – probably many – cases that will be entirely unproblematic. But in cases where the issues are as grave and forensically challenging as in Re B and Re C, questioning by the judge may not be appropriate or, indeed, sufficient to ensure compliance with Arts 6 and 8.’
In such circumstances it may be necessary to consider all funding options including, but not limited to, the exceptional funding scheme to provide legal representation to conduct cross-examination of the expert.

It is not difficult to see how some of the envisaged financial savings to legal aid could be swallowed up in inefficient use of court time and resources. This may be a situation in which a small injection of additional funding/resource may have significant impact on costs savings/court time. Williams (2011) in reviewing the LiP literature on behalf of the Ministry of Justice found that court participants such as the judiciary and other parties’ legal representatives felt that compensating for these difficulties creates extra work and possibly ethical challenges. It was noted in particular that LiPs may find the oral and procedural demands of the courtroom overwhelming. In the lead up to the consultation on the impact of changes to legal aid, senior family court judges, including most notably Mr Justice Bodey, have highlighted the negative consequences for LiPs. In reviewing the impact of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, one consideration would be to add to the list of eligibility criteria for legal aid those who are necessarily vulnerable by virtue of them being subject to a court ordered psychological assessment. This is an emerging and growing issue which risks harm to LiPs and risks impacts on quality of evidence. There is an urgent need for clear guidance for all involved to minimise these risks.

With thanks to Sue Candy, Liz Gillett, Rosemary Hunter, Miriam Silver and Sue Whitcombe who commented on an earlier draft of this paper.

References

  • Duffield, N., Kempton, J. & Sabine, C., Family Law and Practice 2017 (College of Law Publishing).
  • Moorhead, R. and Sefton, M., Litigants in person: Unrepresented litigants in first instance proceedings (2005, London: Department for Constitutional Affairs).
  • Miles, J., Balmer, N.J. & Smith, M., ‘When exceptional is the rule: mental health, family problems and the reform of legal aid in England and Wales’ [2012] CFLQ 320.
  • Williams, K., Litigants in Person: a Literature Review (London, Ministry of Justice, 2011).
  • Ministry of Justice, Legal Aid Statistics in England Wales: Legal Aid Agency April to June 2014 (n 18) 27.
  • Trinder, L., Hunter, R., Hitchings, E., Miles J., Moorhead, R., Smith, L., Sefton, M., Hinchly, V., Bader, K., & Pearce, J., Litigants in person in private family law cases (2014, Ministry of Justice Analytical Series).
  • Trinder, L., Taking Responsibility? Legal Aid Reform and Litigants in Person in England (2015, Open Research, https://ore.exeter.ac.uk).
  • Psychologists as Expert Witnesses: Guidelines and Procedure 2015 (Leicester: British Psychological Society. www.bps.org.uk).
  • Psychologists as expert witnesses in the Family Courts in England and Wales: Standards, competencies and expectations Guidance from the Family Justice Council and the British Psychological Society, (January 2016. Leicester: British Psychological Society. www.bps.uk).
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