Court work. Final report of a scoping group. College Report CR147 January Royal College of Psychiatrists London

Transcription

1 Court work Final report of a scoping group College Report CR147 January 2008 London Approved by Central Executive Committee: July 2007 Due for review: 2012

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3 Contents The Scoping Group on Court Work 4 Executive summary and recommendations 7 Introduction 13 Background 14 The interface between psychiatry and the law 17 Duties of a psychiatrist 19 Duties of a psychiatric expert witness 23 Training and continuing professional development 28 The structure of reports 30 The commissioning of reports and relation to employment 32 Quality and supply 34 Accreditation 36 References 38 3

4 The Scoping Group on Court Work MEMBERSHIP Dr Greg Richardson (Chair) Consultant in Child and Adolescent Psychiatry, North Yorkshire and York Child and Adolescent Mental Health Service Dr Gwen Adshead Consultant in Forensic Psychotherapy, Broadmoor Hospital Dr Andy Barker Consultant in Old Age Psychiatry, The Becton Centre, Hampshire Partnership Trust Dr Christopher Bass Consultant Liaison Psychiatrist, Oxford Dr Steffan Davies Senior Lecturer in Forensic Rehabilitation Psychiatry, University of Nottingham; now Consultant in Rehabilitation Psychiatry, Lincolnshire Partnership NHS Trust Professor Nigel Eastman Professor of Medicine and Ethics, St George s Hospital, London Dr Eilish Gilvarry Consultant in Substance Misuse Psychiatry, Newcastle upon Tyne Dr Danya Glaser Consultant in Child and Adolescent Psychiatry, Great Ormond Street Hospital, London Professor John Gunn Emeritus Professor of Forensic Psychiatry, Maudsley Hospital, London Dr Carole Kaplan Senior Lecturer and Consultant in Child and Adolescent Psychiatry, Newcastle upon Tyne Dr Elisabeth Milne Consultant in the Psychiatry of Learning Disability, Rampton Hospital Dr Sameer Sarkar Consultant Forensic Psychiatrist, Broadmoor Hospital Dr Trevor Turner Consultant Psychiatrist, London 4

5 Court work DATES OF MEETINGS Minutes from the meetings of the Scoping Group are available from the Chair. 19 October January April July September January 2006 ACKNOWLEDGEMENTS The Scoping Group is grateful to the following individuals and those attending the following meetings for their involvement in its work, much of which has been included in this report: Ms Sally Averill, Crown Prosecution Service, with special responsibility for mentally disordered offenders Mr John Henderson, magistrate Ms Rachel Hubbard, solicitor Mr Alan Kershaw, Council for the Registration of Forensic Prac titioners Mr Bill Kerslake, Youth Justice Board Ms Brenda Large, magistrate Ms Penny Letts, Council of Tribunals Dr James McKeith, consultant psychiatrist Dr Keith Rix, consultant forensic psychiatrist, who has made considerable contributions to the text and for whose wisdom and knowledge the Group is particularly grateful Mr Robert Robinson, Harbour and Sinclair, solicitors Ms Lucy Scott-Moncrieff, Harbour and Sinclair, solicitors Ms Toni Smerdon, principal legal advisor to the General Medical Council Ms Beverley Taylor, Official Solicitor s Office The Experts Fora of the Civil Justice Council, November 2004 and 3 5 March 2005 The participants in the workshop held at the Annual Forensic Psychiatry Conference in Belfast in February 2005 The Department of Health and National Institute for Mental Health in England Psychiatric Court Reports Seminar held on 18 May 2005 The psychiatric trainees attending the conference on forensic psy chiatry in York in November

6 College Report CR147 The delegates attending the Northern and Yorkshire Divisional Meeting held in York in September 2006 The delegates attending the Fifth Grange Residential Conference in Chester in October 2006 The delegates attending the Irish Division Meeting held in Armagh in May

7 Executive summary and recommendations The established a Scoping Group on Court Work to develop a College view on the complex issues of the involvement of psychiatrists in legal processes. While the legal systems in the jurisdictions covered by the differ, this report does not specifically address these systems, and the principles and recommendations are intended to be helpful to psychiatrists working in different legal settings. Psychiatrists are not expected to be legally trained, but if they are to function effectively when working within a legal framework they must be trained in using their psychiatric expertise and ethical understanding, and will need to maintain that expertise. This document is intended to support all psychiatrists who work at the interface between psychiatry and the law. It attempts to ensure that psychiatrists working in legal settings feel confident and prepared in their role, so that they can continue to make their enormous contribution to the welfare of their patients and the administration of justice, fully supported by their College. The recommendations cover principles of practice for all psychiatrists as well as expert witnesses. Recommendations are also made about training for legal processes, both during psychiatric training and as an integral part of continuing professional development (CPD). The report therefore has implications for the training of all psychiatrists, their training schemes and their personal development plans. S ALL PSYCHIATRIC PRACTICE All psychiatrists should have a basic competence in report writing, as they may well be called upon to give evidence as a professional witness, particularly in relation to mental health tribunals. The writing of reports for tribunals should be an integral part of psychiatrists training for section 12 approval. When preparing reports for the courts, psychiatrists should be aware of potential conflicts of interest between their patients and the public interest and the ethical dilemmas inherent in those conflicts. When approached to prepare a report in legal proceedings, psychiatrists must be clear who is asking for the report and what is the purpose of 7

8 College Report CR147 the report. Psychiatrists must then ask themselves whether they are in a position to write the report as a professional or expert witness and, if the latter, whether they have the expertise necessary for the report. It is best practice for psychiatrists to prepare reports only on people with whom they have professional involvement, even if that involvement is solely for the preparation of a psychiatric report, and on whom they have background documentation. If requested to undertake a paper report, or background documentation is not available, the limitations to the sources of information must be explained in the report. Psychiatrists involved in legal processes should be confident in their findings, reports and evidence, but must be clear about the limitations of their knowledge and expertise and avoid being tempted to answer questions, no matter how pressing, beyond their competence. When preparing a report or giving evidence, psychiatrists should be clear about when they are reporting on their care of the patient and the reasons for making clinical decisions about the patient, and when they are offering expertise to assist the court. Psychiatrists must be clear in their own minds about which role they are engaging in any legal process, and be clear with the court when they are stepping out of that role, or being asked to do so. When psychiatrists are requested by the court to move between the role of professional witness and expert witness, they should clarify to the court that they are doing so and in which capacity they are giving their opinion. Psychiatrists should consider recommending to the court the employment of an independent expert. Psychiatrists must ensure that valid or express consent is obtained from the subject of a report before the report is prepared. The use of a written consent form is advised. Before professional witnesses give evidence in legal proceedings they must always discuss with their patient what is to happen and why. As such evidence may entail a breach of confidentiality, this should be explained to the patient beforehand. Evidence given in the subsequent legal process should always be presented in the context of the patient s best interests, although compliance with the oath or affirmation may require the psychiatric witness to say things that are not in the patient s best interests. The following principles should apply to all reports: the report should state the qualifications and current job of the author, and summarise his or her professional experience the report should state who it was commissioned by and list the questions asked or issues to be addressed. The following forms the factual basis of the opinion to be given: the report should list the documents read and materials considered (e.g. audiotapes, videotapes, photographs) the report should detail any meetings and telephone conversations held, with dates and participants, unless legally privileged observations about the patient should be set out, including mental state etc. 8

9 Court work Psychiatrists should always ask how modern technology (e.g. videoconferencing) might reduce the time they need to attend court. Psychiatrists undertaking legal work must ensure they have indemnity insurance for that work. EXPERT PSYCHIATRIC PRACTICE When preparing a report an expert should: have a detailed discussion with the instructing solicitor to clarify the questions being asked of the report, other than in the most straightforward cases or where the questions are clear make a note of any subsequent discussions with the instructing solicitor or barrister involved. As there is a risk for subjects of reports that psychiatric expert testimony may lead to an outcome they do not desire, it is an expert s duty to make it clear to subjects that: the expert s role is to provide an opinion to the court the subject may refuse to cooperate with the preparation of a report the report is not confidential and may be seen by a number of different professionals the subject may refuse to answer certain questions the expert is not there to provide treatment, other than in an emergency. Expert witnesses must act with honesty, impartiality, objectivity and respect for justice, regardless of the party who instructs them. In criminal matters, psychiatric experts should show a willingness and ability to be instructed by both defence and prosecution, as this would indicate a general attitude of objectivity. It would also suggest that the report has not been influenced either by the person who commissioned the report or by the exigencies of the litigation. In cases brought under the Children Act, the responsibilities of the expert and the court are congruent, as both recognise that the interests of the child are paramount. The expert should not take instructions that go beyond psychiatric expertise, for example in providing opinions as to whether an individual is telling the truth. Care should be taken when the issue is one of novel psychiatric conditions for which there is an uncertain evidence base or a condition, such as battered woman syndrome, false memory syndrome, Stockholm syndrome or sick building syndrome, that may be recognised by the courts but for which there are no recognised diagnostic criteria, or no general agreement to the syndrome s nature, or even no agreement as to its existence. Similar concerns apply when the opinion depends on the court accepting a particular hypothesis. In such circumstances the psychiatric expert should make clear the status of the condition or the extent to which the opinion depends on the court accepting a particular hypothesis. 9

10 College Report CR147 Experts should: make clear the evidence base for their recommendations have some knowledge of the facilities available for the mental health interventions recommended and should have discussed their recommendations with the relevant services (this may require the permission of the instructing lawyers; if permission is not given, the psychiatrist must indicate in the report that this is the reason why consultation has not taken place) still make evidenced-based recommendations if there are no local facilities available, in order to call attention to the lack of resources for mental health interventions required for the patient if it is unlikely that the recommendations will be carried out, state in the report why that is the case and what a second, less desirable plan might be. An expert using evidence from the work or reports of other mental health professionals must attribute the evidence to those professionals and provide details of their experience and qualifications. Experts are advised to write their reports in a form that is recognised as standard for their area of expertise and that is helpful to those who commissioned the report and to the court. If experts have concerns about the conditions in which a subject is held, they should report this to the official responsible for the placement and those who provide medical cover to the placement. They should carry out a psychiatric assessment to ensure justice for the subject. Psychiatrists who become aware that a report they have prepared is not to be disclosed to the court and consider that disclosure is in the public interest should seek the advice of their medical defence organisation as to whether to ensure the court is aware of the report and its contents. Expert witnesses should be clinically active (that activity may include the preparation of reports), should be members of a CPD group, have a personal development plan relevant to their area of expertise and should be appraised at least once a year by their employer or a CPD group colleague. Psychiatrists working in the National Health Service (NHS) who undertake legal work as part of their professional duties should have this detailed in their job plan. If such psychiatrists are undertaking legal work independently, the time allocated to this should be recognised in the job plan as distinct from NHS duties. Psychiatrists working in the independent sector may have similar contractual arrangements with their employer. Psychiatric experts should contract to be paid for the work undertaken, not according to the stature of the case. Psychiatrists might consider forming teams with other mental health professionals to provide a more comprehensive service to the courts. Ethical psychiatric experts will: not give evidence beyond their expertise undertake CPD to maintain their expertise 10

11 Court work have an awareness, when making their recommendations to the court, of the possibilities for the treatment or placement of those on whom they prepare reports declare any conflict of interests to the courts (e.g. if a recommendation is made for the placement of a person in an establishment in which the expert has an interest or the subject of the report is or has been their own patient) prepare a report based on their opinions from the evidence and their specialist knowledge, uninfluenced by the exigencies of the litigation and regardless of who commissioned the report be cognisant of the funding arrangements of organisations such as the Legal Services Commission, so ensuring value for money (this may include questioning whether a psychiatric report is really necessary) have the integrity to resist any pressure to adjust their report to suit the needs of instructing lawyers or their clients be clear about time scales for the preparation of reports so that delay is minimised retain all their notes. PSYCHIATRIC TRAINING THE COLLEGE The College, through its educational channels, should press for more comprehensive teaching of medico-legal and ethical matters in medical schools as part of the core curriculum. The College, through its educational channels, should press for more comprehensive teaching of medico-legal and ethical matters in the Foundation years. It must be part of generic psychiatric training that trainees are not only taught about the interface between psychiatry and the law but also are required to prepare reports for legal proceedings and have experience of appearing before mental health tribunals. By the time they obtain the Membership qualification they should be competent as professional witnesses. Core competencies for professional witness work that apply to all psychiatrists should be developed as part of early generic training. For specialty-specific professional and expert witness work, core competen cies should be developed by each faculty as part of specialty training. It should be the responsibility of each faculty within the College to devel op a core curriculum, based on core competencies, for the training of psychiatrists within the faculty on legal issues relevant to them as practising professionals and as experts, and to ensure that legal matters are not only taught but that the trainee has experience of putting them into practice. Once in post as consultant psychiatrists, some part of their CPD should be geared to maintaining competence as professional witnesses. Each faculty of the College will need to work on defining skill levels, core competencies and specialties for psychiatrists who undertake court 11

12 College Report CR147 work as an integral part of their practice as professional witnesses through to those who wish to specialise in particular areas of forensic psychiatric practice. A pro forma addressing consent and confidentiality in relation to legal proceedings should be developed by each faculty and a model consent form devised. Each faculty of the College should advise its members that, before presenting themselves as expert witnesses or agreeing to appear as expert witnesses, they should have attended a relevant course or courses approved for CPD (Academy of Medical Royal Colleges, 2005). PSYCHIATRIC TRAINING PERSONAL Psychiatrists presenting themselves as expert witnesses should ensure that they have induction into expert witness work, particularly in those sub-specialties frequently called upon to assist legal processes (Academy of Medical Royal Colleges, 2005). Expert witnesses must have some part of their training and CPD dedicated to the expert role. Psychiatrists acting as expert witnesses should be able to provide evidence of CPD activities and peer group review geared to maintaining their competence as an expert. The Scoping Group considers that responsibilities for medico-legal practice should be incorporated in the personal development plans of individual psychiatrists. Those who wish to practise as experts must ensure they undertake CPD geared to maintaining that expertise. This may require development of the College s current monitoring of CPD, which is well established and described in the College document on CPD (, 2001). Those working in legal processes should set up mechanisms to receive feedback from the lawyers and courts involved so that they can audit and improve their practice in this area. Psychiatrists acting as expert witnesses should have relevant knowledge of court procedures. 12

13 Introduction The Executive and Finance Committee of the established the Scoping Group on Court Work in April 2004 to develop a College view on the complex issues of the involvement of psychiatrists in legal processes. This report of the Scoping Group does not address expert work outside the legal setting, such as for insurance companies, employers or trade unions. Nor does it specifically address differences in the legal systems of the jurisdictions covered by the. The majority of the members of the Scoping Group were from England and hence their experience was of the English legal system. However, this report is aimed at assisting psychiatrists by providing some basic principles for work within any legal system, be it in the UK, the Republic of Ireland or any other country where Members and Fellows may practise. Medical training leads to the development of a different set of skills from legal training. Most psychiatrists giving evidence in legal proceedings have legal training pertaining only to mental health matters such as Mental Health Acts or Mental Capacity Acts. Psychiatrists are not expected to be legally trained, but if they are to function effectively when working within a legal framework they must be trained in using their psychiatric expertise and ethical understanding, and will need to maintain that expertise. This document is intended to be a support for all psychiatrists who work at the interface between psychiatry and the law. It attempts to ensure that psychiatrists working in legal settings feel confident and prepared in their role, so that they can continue to make their enormous contribution to the welfare of their patients and the administration of justice, fully supported by the College. This report is not a textbook on how to deal with legal processes, as these are specialised areas on which many specialist textbooks and articles have been published. Such specialised areas will require specialty and individual training, with which specialty education and curriculum committees and individual programmes of continuing professional development (CPD) should be closely involved. It will take some time for the training developments proposed in this report to take place and psychiatrists who are already assisting the courts should not suddenly feel deskilled. Experience in the field is clearly one of the major qualifications for giving opinions and psychiatrists should feel confident when describing this experience to the courts. A number of events and initiatives led to the Executive and Finance Committee s decision to establish the Scoping Group and there have been considerably more of these since the Scoping Group was established. They need to be considered as the background to, and context for, this report. 13

14 Background It was recognised over 20 years ago that the teaching of legal medicine and ethics in British medical schools is barely sufficient for the needs of today and is declining (Mant, 1986). The performance of doctors in legal processes came to the fore in subsequent years because of concerns about possible miscarriages of justice that had occurred as the result of over-reliance on expert evidence, some of it medical, particularly in criminal trials. As a result, the standards of expert witnesses were questioned. Concerns about these matters led to the Royal Commission on Criminal Justice being set up. In 1998 Lord Woolf presided over an inquiry into the civil justice system that led to a number of reforms. Lord Woolf recommended that codes of practice providing guidance as to the practice in relation to experts should be drawn up jointly by the appropriate professional bodies representing the experts and the legal profession and recommended that training courses and published material should provide expert witnesses with a basic understanding of the legal system and their role within it, focusing on the expert s duty to the court, and enable them to present written and oral evidence effectively (Rix, 1999). The Council for the Registration of Forensic Practitioners was established in 2000 and the need for standards for psychiatrists working with legal processes was recognised. There are a number of expert witness organisations (Rix, 1999) that provide training in such work, but none takes responsibility for the accreditation or monitoring of experts, although some require periodic references from solicitors. In March 2003 the Executive and Finance Committee of the College established a Working Group to consider the future of expert witness work by child and adolescent mental health professionals, under the chairmanship of Dr Danya Glaser (, 2004c). The Executive and Finance Committee subsequently considered that the topic of court work needed tackling by all the faculties of the College. In 2003 the Civil Justice Council established an Experts Committee, chaired by the Master of the Rolls, to examine and report on the role of experts in the civil justice system. In September 2004 a working group convened by the Royal College of Pathologists and the Royal College of Paediatrics and Child Health (2004), chaired by Baroness Helena Kennedy, published a report on sudden unexpected death in infancy. One of the recommendations in relation to expert witnesses was that they should be in good standing with their medical royal college, that they should have special instruction on the role of the expert witness and that such training should be kept up to date. Baroness Kennedy s report also recommended that before an expert gives evidence, the judge should establish the expert s credentials. 14

15 Court work In relation to family and child cases, the Department of Constitutional Affairs has established the Family Justice Council as a multidisciplinary body to advise on all aspects of the family justice system. It has an expert subcommittee that is focusing on the training and supply of expert witnesses (Family Justice Council, 2006). In November 2004 the Legal Services Commission produced a consultation document entitled The Use of Experts because of concerns about the quality, cost and procedures for gaining expert opinions and evidence when the taxpayer was paying for publicly funded cases (Legal Services Commission, 2004). In July 2005 the General Medical Council (GMC) erased Professor Sir Roy Meadow s name from the Medical Register. This took place because Sir Roy was considered to be guilty of serious professional misconduct within the court setting not because of any malpractice in clinical settings but because of his functioning in legal processes. Subsequently the High Court decided that Professor Meadow was not guilty of serious professional misconduct and should remain on the Medical Register. The judge said that the GMC s original decision had a damaging effect in that it has increased the reluctance of medical practitioners to involve themselves in court proceedings, particularly in cases before the Family Court. He also ruled that the GMC should not have brought misconduct proceedings against Professor Meadow because expert witnesses should be immune from prosecution or disciplinary action. Subsequently the Court of Appeal overturned the latter ruling but allowed Professor Meadow to stay on the Medical Register. The Academy of Medical Royal Colleges (2005) has produced guidance on medical expert witnesses which provides a structure on which the different branches of medicine can build. It states that the roles of the medical royal colleges and faculties are: To ensure that doctors have appropriate training opportunities for work as medical expert witnesses. This training may be included as part of the core training programme for specialist registration or recognised and accredited as continuing professional development, or both. To advise on the criteria that might be applied by the courts and by others before relying on medical expert evidence and testimony. In October 2005 HM Prison Service and the Department of Health produced a document entitled Stakeholder Consultation on Service Level Agreement Addressing Production of Mental Health Reports for the Courts (HM Prison Service & Department of Health, 2005). A College response was prepared jointly by the Forensic Faculty and the Scoping Group. A report on the dual questions of quality and supply in family law cases has been prepared by the Chief Medical Officer, in which he proposes forming teams of experts from different disciplines and specialties within the remit of the National Health Service (NHS) (Donaldson, 2006). Although the recommendations are specifically about family law cases, he recognises that some of the issues raised are nonetheless relevant to the whole spectrum of medical evidence whether in criminal cases or public law Children Act proceedings. They may therefore have wider implications for psychiatrists giving expert evidence in other settings, although the necessary changes should be allowed to bed down before any consideration is given to extending the (proposed) system to other types of case or types of court. The Scoping Group has forwarded a response to the consultation on this document. 15

16 College Report CR147 Against that background, and as a response to the recommendations of Lord Woolf (see Rix, 1999), the Royal College of Pathologists & Royal College of Paediatrics and Child Health (2004), the Academy of Medical Royal Colleges (2005) and the Chief Medical Officer (Donaldson, 2006), as sketched out above, the must provide clear guidance to its members. Such guidance must ensure that those who work at the interface between psychiatry and the law provide their patients and legal bodies with clear, focused psychiatric reports, prepared to the highest standards, and give oral testimony with a dignified and confident professional demeanour. 16

17 The interface between psychiatry and the law Psychiatrists may be asked to prepare reports on their own patients, who are known to them and to whom they have an ordinary duty of care; or on individuals who are not known to them and to whom they would not ordinarily owe a duty of care. Their duties may vary in these two different circumstances (see below). The list below is not comprehensive but gives some idea of the diversity of situations in which psychiatrists may become involved in legal processes. CRIMINAL MATTERS Reports on defendants. Reports on complainants and other witnesses. Reports on victims. CIVIL MATTERS Tribunals: mental health review tribunals special educational needs and disability tribunals Criminal Injuries Compensation Authority appeals Family Health Services Appeal Authority disability living allowance appeals incapacity benefit appeals employment tribunals. GMC: questions of competence or unethical practice (i.e. fitness to practice), including competence to give evidence in legal proceedings as witnesses in GMC proceedings as psychiatrists who supervise doctors who are subject to GMC proceedings. Assessment of capacity and best interests (under the Mental Capacity Act 2005). 17

18 College Report CR147 Clinical negligence claims. Matters involving foreign nationals, including asylum seekers. Mental health of detainees. Personal injury claims. CHILDREN S MATTERS Criminal law: mental disorder in young offenders capacity to plead. Civil law: Children Act 1989 care proceedings private law proceedings residence, contact, specific issue orders. 18

19 Duties of a psychiatrist Standard medical responsibilities and ethics apply to all doctor patient interactions. Psychiatrists are qualified practitioners who have training and qualifications relevant to their specialty, and who are in good standing with the GMC and the. The responsibility of psychiatrists is initially to their patients, for whom they must provide a comprehensive assessment and treatment plan in line with guidance from both the General Medical Council (2006) and the Royal College of Psychiatrists (2004a). Assessment of capacity to consent to treatment or to manage one s affairs is included in their responsibilities. These responsibilities also include putting the patient s welfare above most other considerations, always striving to prevent harm to the patient, and providing confidential interviews. Psychiatrists have a professional relationship with the patient, as well as a duty of care. Psychiatrists are likely at some point to be asked to produce reports for legal processes. All psychiatrists must therefore be competent in this. However, the production of a report for the court may produce tensions, particularly in forensic psychiatry, between the needs of the patient and the welfare of the community. The complex ethical dilemmas that ensue are discussed in detail in College Council Report CR129 (Royal College of Psychiatrists, 2004b). S All psychiatrists should have a basic competence in report writing, as they may well be called upon to give evidence as a professional witness, particularly in relation to mental health tribunals. The writing of reports for tribunals should be an integral part of psychiatrists training for specialist approval (Section 12 in England). When preparing reports for the courts, psychiatrists should be aware of potential conflicts of interest between their patients and the public interest and the ethical dilemmas inherent in those conflicts. Psychiatrists responsibilities to the patient are not absolutes but do override all other considerations save in very exceptional circumstances. A duty to the court and above all the duty to the oath or affirmation taken in court are considerations that will on occasion override medical responsibilities to the patient. The duty to the court also implies that the report would not be varied according to who commissions it. Psychiatrists rarely give evidence purely as to fact, but rather offer opinions based on experience and knowledge of the psychiatric literature. Such opinions should not be presented as facts. 19

20 College Report CR147 A psychiatric opinion is highly valued by the court and the psychiatrist should assist the court as much as possible, by giving a clear opinion on the questions the court is asking, on such matters as diagnosis, prognostic factors and the risks incumbent on a particular course of action. An important medical responsibility that is accepted and welcomed by the courts is to recognise the limitations of knowledge in general, and personal knowledge in particular. For example, categorical confident statements about prognosis are rarely accurate in medicine and almost never indicated in a legal setting, so it is important to avoid answering pressing questions from a lawyer in a way that implies more certainty than can be derived from current knowledge. S Psychiatrists involved in legal processes should be confident in their findings, reports and evidence, but must be clear about the limitations of their knowledge and expertise and avoid being tempted to answer questions, no matter how pressing, beyond their competence. When approached to prepare a report in legal proceedings, psychiatrists must be clear who is asking for the report and what is the purpose of the report. Psychiatrists must then ask themselves whether they are in a position to write the report as a professional or expert witness and, if the latter, whether they have the expertise necessary for the report. It is best practice for psychiatrists to prepare reports only on people with whom they have professional involvement, even if that involvement is solely for the preparation of a psychiatric report, and on whom they have background documentation. If requested to undertake a paper report, or background documentation is not available, the limitations to the sources of information must be explained in the report. Core competencies for professional witness work that apply to all psychiatrists should be developed as part of early generic training. For specialty-specific professional and expert witness work, core competencies should be developed by each faculty as part of specialty training. The subjects of reports must be informed that their medical details are to be disclosed in legal proceedings. This may be prior to the initial assessment or during the course of treatment, so that consent can be gained for such disclosure, or the situation explained to the effect, if it be so, that the psychiatrist has a legal obligation to prepare such a report without the subject s consent. Written consent to the provision of the report and any subsequent disclosure ensures that there is a record of the subject s consent. It is also a helpful focus and aide-mémoire for discussing matters relevant to consent (Rix, 2008). The psychiatrist must ensure that valid or express consent is obtained from the subject of a report before the report is prepared. The use of a written consent form is advised. The Scoping Group found helpful the approach used by the GMC, that a professional witness reports on the assessment, opinion and ongoing management of a patient in line with the general legal rule that a witness must confine his evidence to an account of facts within his direct knowledge and experience, but is not expected to give an expert opinion in relation to 20

21 Court work the legal processes in which he or she is involved. An expert who is qualified and experienced in a given field to give evidence in court of his opinion on matters within that field is an exception to that general rule (Badenoch, 2005). In practice this distinction is not always possible to maintain, for example when a forensic psychiatrist working in a special hospital has medical responsibility for a patient, but also has particular expertise in the area of that patient s difficulties, which is probably why that psychiatrist is responsible for the patient. It would be foolish in such a circumstance not to use the psychiatrist s knowledge of the patient in addition to his or her expertise. The dual role of forensic psychiatrists in this regard has been carefully analysed in College Council Report CR129 (Royal College of Psychiatrists, 2004b). However, when moving between the role of advising the court on the facts of the patient s care and the role of offering an expert opinion that may be helpful to the court, the psychiatrist should clarify to the court that he or she is doing so. When preparing a report or giving evidence, psychiatrists should be clear about when they are reporting on their care of the patient and the reasons for making clinical decisions about the patient, and when they are offering expertise to assist the court. Psychiatrists must be clear in their own minds about which role they are engaging in any legal process, and be clear with the court when they are stepping out of that role, or being asked to do so. DUTIES AS A PROFESSIONAL WITNESS In psychiatry a professional witness is a qualified practitioner who has detailed knowledge of a patient through the doctor patient relationship. Professional witnesses share some of their knowledge and opinions about a specific patient or the condition from which they suffer with the court. This may be in writing or orally. Before professional witnesses give evidence in legal proceedings they must always discuss with their patient what is to happen and why. As such evidence may entail a breach of confidentiality, this should have been explained to the patient beforehand. Evidence given in the subsequent legal process should always be given in the context of the patient s best interests, although compliance with the oath or affirmation may require the psychiatric witness to say things that are not in the patient s best interests. Difficulties arise if reports prepared by a professional witness are used in place of expert evidence. Professional witnesses may then have a conflict of responsibility, for they may consider themselves primarily responsible to the legal setting, be it a tribunal, court or child protection procedure, which may override their duty to their patient. Equally, the production of an expert report may also jeopardise the relationship with the patient, so interfering with ongoing treatment. This tension between the needs of the patient and the needs of the court is inherent to forensic psychiatric practice. 21

22 College Report CR147 When psychiatrists are requested by the court to move between the role of professional witness and expert witness, they should clarify to the court that they are doing so and in which capacity they are giving their opinion. They should consider recommending to the court the engagement of an independent expert. These duties apply to all practising psychiatrists and are separate from the more specific responsibilities of an expert witness, discussed in the next section. There will be occasions when expert witnesses act as professional witnesses in relation to their own patients. 22

23 Duties of a psychiatric expert witness The role of an expert witness is to assist those responsible for the legal process in question in circumstances where, without that expertise, the objective of the legal process could not be achieved. For example, a psychiatrist may help a mental health review tribunal or a court to reach a fair and just judgement by providing psychiatric expertise relevant to the case in question. The medical expert witness is defined by the British Medical Association (BMA; 2004) as some-one called in by one side or the other to interpret the facts using his/her clinical expertise. A psychiatric expert witness should be prepared to offer an expert opinion to the prosecution, the defence, or the court itself, on the specific questions that have been raised by the lawyers concerned. An expert witness may be a qualified practitioner who has specialised knowledge about a particular medical topic (e.g. disease or procedure), or even the practice of medicine in general or at a particular time. Medical responsibilities of confidentiality and preventing harm to patients apply to expert witnesses. Medical expert witnesses should be familiar with the court setting and the responsibilities entailed in court work, in order to carry out their work effectively. For example, they should be aware of and understand legal processes (Friston, 2005). However, their primary expertise is their psychiatric knowledge, skill and experience, and not their legal knowledge, familiarity with court procedure or skill in giving evidence. S Psychiatrists presenting themselves as expert witnesses should ensure that they have had induction into expert witness work, particularly psychiatrists in those sub-specialties frequently called upon to assist legal processes (Academy of Medical Royal Colleges, 2005). Psychiatrists acting as expert witnesses should have relevant knowledge of court procedures. Expert testimony is prepared at the request of different parties, including the court; but the overriding duty of an expert is to the court. A good working relationship with instructing lawyers will clarify the purpose of the report and its usefulness to the court, as the expert s duty is to the court, not to the instructing lawyer. The standard for the validity of psychiatric testimony has not been tested in the courts; therefore it is most helpful to apply the reasonable body of psychiatric opinion test, known in some legal circles as the Bolam test. 23

24 College Report CR147 S Expert witnesses must act with honesty, impartiality, objectivity and respect for justice, regardless of the party who instructs them. In criminal matters, psychiatric experts should show a willingness and ability to be instructed by either defence and prosecution, as this would indicate a general attitude of objectivity. It would also suggest that the report has not been influenced either by whoever has commissioned the report or by the exigencies of the litigation. In cases brought under Children Act, the responsibilities of the expert and the court are congruent, as both recognise that the interests of the child are paramount. The expert should not take instructions that go beyond psychiatric expertise, for example in providing opinions as to whether an individual is telling the truth. Care should be taken when the issue is one of novel psychiatric conditions for which there is an uncertain evidence base or a condition, such as battered woman syndrome, false memory syndrome, Stockholm syndrome or sick building syndrome, that may be recognised by the courts but for which there are no recognised diagnostic criteria or no general agreement to the syndrome s nature or even agreement as to its existence. Similar concerns apply when the opinion depends on the court accepting a particular hypothesis. In such circumstances the psychiatric expert should make clear the status of the condition or the extent to which the opinion depends on the court accepting a particular hypothesis. The parties instructing the expert should not influence his or her conclusions. In criminal as well as civil and family proceedings, the role of the expert is to advise the court. This may or may not involve the expert in taking issue with the opinions expressed by other experts in the proceedings. It should be noted that the defence does not have a duty to disclose all its evidence, but the prosecution does. If the commissioning party does not consider a report favourable, it might not be disclosed to the court. In such circumstances, psychiatrists might consider the public interest is not being served and should seek advice from their medical defence organisation or an independent lawyer as to whether they should forward a report to the other party or to the court. There is case law demonstrating that a psychiatrist acting in the public interest may override the confidentiality of the person on whom he or she has prepared a report. Psychiatrists who become aware that a report they have prepared is not to be disclosed to the court and consider that disclosure is in the public interest should seek the advice of their medical defence organisation as to whether to ensure the court is aware of the report and its contents. Particularly in forensic psychiatric practice, psychiatric expert testimony may often lead to undesirable outcomes for the subject of the opinion, such as a longer than usual sentence in criminal offences. Some psychiatrists feel they have an overriding duty to the subject of their opinion, as if he or she were an ordinary patient; others consider it misleading to the subject to suggest that he or she enjoys an ordinary therapeutic relationship. American and Australian psychiatric codes of ethics take the view that the expert relationship is not a therapeutic one and therefore the subject is not a patient, and the welfare of the subject is not the expert s main ethical concern. However, this does not mean that there are no traditional 24

25 Court work medical ethical duties, such as respect for autonomy (expressed by the obtaining of consent and advice on the limitations of confidentiality). The fact that the expert did not know the subject before the court proceedings does not absolve the expert of responsibilities to the patient, for, once the subject has consented to become involved with the expert, a doctor patient relationship is established. A consent form may encompass the following recommendation. As there is a risk for subjects of reports that psychiatric expert testimony may lead to an outcome they do not desire, there is a duty on experts to make it clear to subjects that: the expert s role is to provide an opinion to the court the subject may refuse to cooperate with the preparation of a report the report is not confidential and may be seen by a number of different professionals the subject may refuse to answer certain questions the expert is not there to provide treatment, other than in an emergency. There is a need for a more transparent process of gaining consent for the psychiatric assessment from the subject, who should be fully informed that the report may be used for the court s purposes, which may not coincide with his or her interests. In providing a report to the court, a mental health professional may have to disclose information that the subject does not want disclosing or finds offensive, or that impairs any ongoing therapeutic relationship. This dilemma can be addressed only by an honest discussion with the patient of what will be included in the report or careful reference in general terms to any matters the subject was unwilling or unable to discuss and identification of any matters that the psychiatrist was advised should not, if possible, be revealed in open court. Such difficulties occur particularly in child cases, when any ongoing work with one or other parent may be impaired by the contents of the report. A pro forma addressing consent and confidentiality in relation to legal proceedings should be developed by each faculty and a model consent form devised. There is concern about expert witnesses who make recommendations without consulting those who will have to operate such recommendations and without clarifying the evidence base for their recommendations. A result may be that the court orders a course of action which the commissioners or gatekeepers of the service local to the person have difficulty providing, or which prevents equity of access to mental health services. If unmet need is identified, this should be acknowledged in the report and a statement should be made that, if an alternative plan of action is suggested, it is not the most desirable plan, but the only one available in the circumstances. 25

26 College Report CR147 Experts should: make clear the evidence base for their recommendations have some knowledge of the facilities available for the mental health interventions recommended and should have discussed their recommendations with the relevant services (this may require permission of the instructing lawyers; if permission is not given, the psychiatrist must indicate in the report that this is the reason why consultation has not taken place) still make evidenced-based recommendations if there are no local facilities available, in order to call attention to the lack of resources for mental health interventions required for the patient if it is unlikely that the recommendations will be carried out, state in the report why that is the case and what a second, less desirable plan might be. In work under the Children Act 1989, the court s permission is required to instruct an expert, who is usually, but not always, jointly instructed by all parties. In joint instructions the expert is providing information for all parties to inform the legal process. However, the adversarial nature of the criminal justice system allows for more than one expert opinion. Psychiatrists commissioned to prepare a report based on their opinions, from the evidence and their specialist knowledge, have a responsibility to assist the court regardless of who commissioned the report. An expert may use evidence from other mental health professionals to ensure the report is comprehensive. An expert may not commission evidence from other mental health professionals without the consent of those instructing them. An expert using evidence from the work or reports of other mental health professionals must attribute the evidence to those professionals and provide details of their experience and qualifications. In certain circumstances the subject of a report may be kept in conditions the psychiatrist deems unethical, but the psychiatrist still has a responsibility to meet the psychiatric needs of the subject. If experts have concerns about the conditions in which a subject is held, they should report this to the official responsible for the placement and those who provide medical cover to the placement. They should carry out a psychiatric assessment to ensure justice for the subject. Those wishing to give expert evidence in legal proceedings will have a Certificate of Completed Training or be on the GMC s specialist register in their chosen specialty. Their CPD plans should record their further training, supervision and professional development to maintain their competence in such expertise beyond the psychiatrist who acts only ever as a professional witness. For example, it may be helpful for them to demonstrate membership of a CPD peer group at which this specialist expert work was discussed, the amount of work in this area undertaken is reviewed and training standards established. The peer group would, within the bounds of confidentiality 26