Dr PETER L G JENKINS FRCPsych, consultant psychiatrist, outlines some of the salient issues in the development of expert witness testimony in the field.
MY WORK AS an expert witness started when I became interested in mentally disordered offenders and worked as a fellow in forensic psychiatry in the University of South Carolina School of Medicine. In that role I was exposed to the whole range of criminal behaviour and provided assessments of fitness to plead and determinations of mental state to assist the court in pleas related to the verdict of guilty but mentally ill and not guilty by reason of insanity. An interesting part of my work at the time also involved civil litigation.
On my return to the UK I decided to concentrate on civil litigation issues, a decision which was helped by the vast class action suit brought by approximately 80,000 people who felt that the drug companies Wyeth and Roche had failed to take into account the addictive potential of their benzodiazepine drugs. The sheer volume of psychiatric cases meant that the closed shop of the senior retired professionals who dominated the provision of medical advice to the courts had to be broken so that claimants were allowed in. That offered an opportunity to many younger professionals such as myself to establish a practice.
Over the years since then the provision of expert advice to the courts has undergone a welcome and encouraging increase in professionalism.
Nowadays most well trained experts will have taken advantage of specific courses run by lawyers and tailored to enable them to provide their advice to the courts and other bodies in a fashion which meets the needs of their legal customers. Psychiatrists, for example, are often very interested in diagnostic questions. Surprisingly, there remains little good evidence about important issues which effect the value of claims, such as the impact of the diagnosis upon an individual’s working capacity, enabling a determination of their loss of earnings.
The psychiatric professional also shows a worrying tendency, perhaps even more acute in psychologists, to pathologise the vast range of normal human experience with the adoption of diagnostic labels such as ‘adjustment disorder’, which at one end of the scale really amounts to just normal psychological responses to life events and at the other may be the precursor of a more significant clinical mood disorder.
In the many years I have worked with lawyers I have been surprised to find that many of them do not know the distinction between psychiatrists, who are medically qualified doctors specialising in the treatment of persons with mental disorders, and psychologists – who are not medically qualified and therefore frequently are unable to give advice about the organic aspects of a client’s presentation or treatment using evidencebased treatments such as drug therapy.
In respect of the medicalisation of ordinary human experience it is often a salutatory question to ask the expert whom you are instructing whether or not they have ever found a claimant not to have anything psychologically wrong with them.
An initial level of commitment to providing a professional level of service is often demonstrated simply by providing a proper terms and conditions letter, and this of course avoids any disputes. The comment many experts make is that they have outstanding fees payable to them; that is hardly surprising if they have not agreed a date by which such fees should be payable.
The terms and conditions letter that you receive will immediately indicate to you whether the expert is undertaking such work as a hobby or as a serious professional endeavour.
Similarly, along with a statement that they are in good standing in terms of their continuing professional development, one might also look at whether they have undertaken specific training relevant to their expertise and the legal system, for example giving evidence in court.
There are many different sources and directories of experts and the best are without doubt those which regularly offer a search facility, but also require referees in order for the experts to be included within them. In some areas of the country, for example South Wales, there is an ‘Accord’ developed by the Law Society from which have been excluded experts who have, in the past, been overly biased towards the plaintiff or the defendant in cases.
It is also necessary to examine the expert’s curriculum vitae and in particular one should look for current clinical activity.
The days when people would be able to continue to practice providing advice well into retirement, when they have lost familiarity with diagnosis and modern treatments, should be in the past. Evidence of interest in expert work such as the Cardiff University Bond Solon (CUBS) Expert Witness certificate may increasingly be helpful.
One of the biggest and most positive changes in the civil litigation area, in my opinion, has been the introduction of the single joint expert in 1999. The experts you instruct should be familiar with acting as a joint expert and be CPD certified. From my position, acting as a single joint expert removes much of the adversarial tension which can exist when one is seeing a claimant for the defendant or/and the disappointment that many claimants express when the expert does not share their view of the serious nature of their psychological symptoms, if any.
Most experts, myself included, while aware of the possibility of malingering, rarely encounter this in clinical practice. Even when malingering does occur the consequences are of limited clinical interest; for example, when somebody falsely claims to be suicidal and thus gains admission overnight and a bed and a meal it is not exactly a devastating outcome and rapidly remedied when they are discharged.
In the context of court cases, however, it is unsurprising that a small percentage – approximately 1% of claimants – are exaggerating or even fabricating their difficulties.
I vividly remember seeing one of the worst cases of agoraphobia that I have ever encountered based upon my clinical assessment, only to be shown videos of the claimant playing golf on five separate occasions courtesy of surveillance operatives. Having said that, surveillance is of limited benefit in many psychiatric cases because obviously there are no objective signs of psychiatric illness or pain.
One of the more amusing surveillance videos I saw involved the operatives travelling to Spain and videotaping the claimant and a person, thought to be his wife, on their beach holiday. Regrettably the claimant had attended the holiday with somebody other than his wife, who was also a claimant in the action.
Some claimants express astonishment that such measures are undertaken and consider it grossly violates their privilege.
This is, of course, because they are unaware of the frequency with which some claimants who have slipped and injured themselves and then claimed to be disabled are then observed playing football; or they may not know how some lawyers can inflate claims for care and assistance way beyond levels which would be reasonable.
In terms of working as an expert I find that the major enjoyment comes from meeting barristers and lawyers, many of whose intellectual acuity is far greater than mine and who pose questions which frequently require a substantial amount of research and consideration. Then, finally, a very enjoyable element of the work is that the claimants in general show a surprising degree of psychological strength and cope with sometimes devastating injuries far more effectively than one might cope with them oneself. That is a source of pleasure when one realises the underlying strength of ordinary men and women.