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‘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 responsibilitySpecifically 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.
‘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.
‘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.