Written Expert Evidence (Court Report) Skills for Child & Adolescent Psychiatrists

Transcription

1 Written Expert Evidence (Court Report) Skills for Child & Adolescent Psychiatrists RCPsych Child & Adolescent Faculty Conference 20 September 2012 Dr Ollie White Consultant Child and Adolescent Forensic Psychiatrist

2 Aims & Objectives The nature and duties of an expert witness Practical matters Structure, organisation and content of psychiatric court reports Specific issues regarding criminal proceedings Specific issues regarding family proceedings relating to children

3 Your experiences

4 Why do courts need experts? The dependence of the Court on the skill, knowledge and above all, the professional and intellectual integrity of the expert cannot be overemphasised. (Wall J in Re AB (Child Abuse: Expert Witnesses) [1995] 1 FLR 181) Expert medical witnesses are a crucial resource. Without them we [the judges] could not do our job. Dame Elizabeth Butler-Sloss

5 Why do courts need experts? Dealing with matters which are outside the experience of a judge or jury May be unnecessary If they can draw their own conclusions on the proven facts without such help Exception to the general rule that opinion is inadmissible

6 What is an expert witness?

7 Types of witnesses Witness of fact provides knowledge about what happened in a particular case Professional witness provides professional knowledge of findings, observations and actions, and the reasons for them Does not give opinion Expert witness interprets the facts using clinical expertise Provides opinions based on the facts

8 What is an expert witness? An expert: Anyone with knowledge or experience of a particular field or discipline beyond that to be expected of a layman An expert witness: An expert who makes this knowledge and experience available to a court to help it understand the issues of a case and thereby reach a sound and just decision

9 What is an expert witness? Someone recognised by the court as qualified to give an expert opinion Established by case law Approved via s.12 MHA Criminal Evidence (Experts) Bill (Law Commission 2011): a person may be qualified to give expert evidence by virtue of study, training, experience or any other appropriate means

10 What is an expert witness? Experts must have the relevant experience The opinion must come within their own area of special knowledge and experience The opinion must be based on the facts

11 Duties and responsibilities As a doctor (Good Medical Practice) Make the care of your patient your first concern Protect and promote the health of patients and the public Provide a good standard of practice and care Treat patients as individuals and respect their dignity Work in partnership with patients Be honest and open and act with integrity

12 Duties and responsibilities As a psychiatrist Good Psychiatric Practice Specific guidance re court work College Report CR147 (2008)

13 Duties and responsibilities As a psychiatrist

14 Duties and responsibilities Ethics: Do not give evidence beyond expertise Undertake CPD to maintain expertise Have an awareness of the possibilities for the treatment or placement of subjects Declare any conflict of interests Rely on the evidence and specialist knowledge uninfluenced by the exigencies of the litigation and regardless of who commissioned the report

15 Duties and responsibilities Ethics: Be cognisant of the funding arrangements and ensure value for money (this may include questioning whether a psychiatric report is really necessary) Have the integrity to resist any pressure to adjust the 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 notes

16 Duties and responsibilities As an expert witness Overriding duty is to assist the court on matters within own expertise This overrides any obligation to those providing instructions and/or payment Test: would the same opinion be given? Comply with relevant professional code of ethics Keep up to date in field of expertise Deal with cases proportionately, expeditiously, fairly

17 Qualities required of an expert witness Sound knowledge of the subject matter in dispute Powers of analytical reasoning required to fulfill their assignment Ability to communicate findings and opinions clearly and concisely Flexibility of mind to modify opinions in the light of fresh evidence or counter-arguments Ability to think on one s feet Demeanor that is likely to inspire confidence

18 Practicalities

19 Training Learning from colleagues Higher specialist training Expert witness courses Case discussions

20 Address and correspondence Avoid using home address Professional address PO Box address Document exchange

21 Responding to enquiry Consider: Do I understand exactly what is being asked? Is a report required? Do I have the relevant knowledge, experience and expertise? Are there any conflicts of interest? Can I deliver the report by the deadline? Am I able to attend the trial if required? Do I have sufficient information to provide an estimate of my fees?

22 Is a report required? Hierarchy of Forensic CAMHS advice to court: None required Discussion with YOT officer detail added to PSR Document (e.g. letter) written by CAMHS and included as an appendix to PSR Document (e.g. letter) written by Forensic CAMHS and included as an appendix to PSR Formal forensic mental health court report

23 Responding to enquiry Written response Confirm that there is no conflict of interest State work is within your expertise State that you can comply with the timetable Give an appointment for assessment Give indication of availability to attend court if required Give an estimation of your fees State your terms and conditions

24 Fees Magistrates Court have a set maximum fee Reading / examination / dictation / typing Usually an hourly rate Travel time Travel expenses Conferences with counsel / Experts meetings Attendances at court

25 Timescales Agree at outset Time required for processing of report ahead of court appearance Difficult to predict need to attend court Communication with instructing party is key How to manage non-attendees

26 Records Obtain all relevant documents Storage Safe Secure According to Data Protection Act Retention of records Criminal cases: 1 20 years Electronic documents Encrypted Password protected

27 Secretarial support Determine need Full administration Typing Agree remuneration and terms and conditions

28 Getting paid Develop a system Terms and conditions Small claims court

29 Probity and compliance Data protection law Employment law Accounts and taxation law Record of time spent

30 Consultation Key aspects Courtesy, respect, sympathetic objectivity, patience Venue Consulting room / Prison / Hospital / Solicitors office / Other Safety Chaperones and interpreters Obtaining consent Verbal / written Collateral history Record of consultation

31 The report A well constructed expert s report containing opinion evidence sets out the expert s opinion and the reasons for it. If the reasons stand up, the opinion does. If not, not Jacob J in Pearce v Ove Arup Partnership Ltd (2002) 25(2) IPD 25011

32 The report Purpose is to communicate your opinion to assist the court in reaching conclusions Aim it at the intelligent professional with no medical knowledge Easy to understand and navigate Tell a story and hold interest Model form Academy of Experts Expert Witness Institute Length of the report

33 Presentation Typed, simple font, 1.5x or 2x line spacing Headings and subheadings Numbered paragraphs Headers and footers, wide margins First person Short sentences and paragraphs Clear, concise, succinct, objective Define medical terminology Fact distinguished and separated from opinion

34 Structure Front page Contents page Introduction Sources of information The facts and assumed facts Opinion and recommendations Declaration Statement of truth Signature block Appendices

35 Reports for criminal proceedings Pre-trial and preliminary issues Trial issues Sentencing Appeals Parole

36 Pre-trial and preliminary issues Report on a person in police custody Is there a mental disorder? Risk to self or others? Requirement for assessment or treatment in hospital? Fit to be interviewed? Appropriate adult? Fit to plead? Requirement for community mental health input?

37 Pre-trial and preliminary issues Fitness to plead and stand trial

38 Fitness to plead and stand trial R v Pritchard (1836) Now determined by judge rather than jury On balance of probabilities

39 Fitness to plead and stand trial Is the defendant capable of: Understand the nature and effect of the charges Deciding whether to plead guilty or not Exercising his right to challenge jurors Instructing solicitors and counsel Following the course of the proceedings Giving evidence in his own defence

40 Fitness to plead and stand trial Learning disability Cognitive assessment often helpful Not necessary unfit: Loss of memory / unable to recall details Being deluded as to the material facts Being deluded regarding jury / Court Giving instructions that are implausible / unreliable Failing to see what is or not a good point in defence

41 Fitness to plead and stand trial Adjustments that can be reasonably made in court: Regular breaks Simplified explanations and clarification of understanding Support when in the witness box Use of basic language Additional time to answer questions before another question is asked / repeat questions

42 Fitness to plead and stand trial If unfit to plead Trial of facts 3 possible disposals: Absolute discharge Hospital Order Supervision Order

43 Trial issues Diminished responsibility Infanticide Insanity Automatism Intent Loss of control Duress and coercion

44 Diminished responsibility Abnormality of mental functioning Arising from a recognised medical condition Substantially impairment of ability to Understand their own conduct Form a rational judgement Exercise self-control Provides an explanation for the killing

45 Diminished responsibility Was there an abnormality of mental functioning at the material time? If so, did it arise from a recognised medical condition? Did this substantially impair D s ability to understand the nature of the conduct, form a rational judgement, or exercise self-control? Does this provide an explanation for the D s acts?

46 Insanity M Naghten Rules (M Naghten s Case, 1843) Presumption of sanity It must be clearly proved that, at the time of committing the act, the party accused were labouring under such a defect of reason, from disease of mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong. Balance of probabilities

47 Insanity Disease of mind Judge to determine Mind: mental faculties of reason, memory and understanding Internal not external Psychiatrist s role: Demonstrate than an impairment of faculties did occur The cause of the impairment

48 Intent Actus reus: The person has caused something to happen Mens reus: The person had a specific state of mind in relation to the causing of the event

49 Intent Specific intent Murder, GBH with intent, theft, robbery, burglary with intent to steal, handling stolen goods, arson with intent to endanger life Basic intent Manslaughter, rape, GBH, ABH, assault, criminal damage (reckless), arson (reckless) Consult the indictment, legal textbooks, instructing party

50 Intent Role of psychiatric evidence Whether the accused has a condition that could affect the ability to form the particular intent to commit the offence Jury decide whether the accused had the necessary mens rea Voluntary intoxication is generally not a defence Examine the evidence carefully Is the behaviour goal-directed / purposeless / confused?

51 Sentencing Mitigation Part III MHA Community sentences Risk assessment

52 Mitigation s.166 (1) & (5) of CJA 2003: savings for powers to mitigate sentences and deal appropriately with mentally disorder offenders Allows court to be flexible in the sentencing of MDOs Sentencing Guidelines Council Recognises mental illness or disability as a mitigating factor i.e. indicating lower culpability Particular reference to child care cases

53 Mitigation Children & young people (s.44 C&YP Act 1933) Courts are required to consider child s welfare Courts should have high regard for: Mental health Learning disabilities Vulnerability to self-harm (esp in custody)

54 Part III of the Mental Health Act Remand to hospital for report (+/- treatment) Interim Hospital Order Hospital Order (+/- Restriction Order) Prison sentences with Hospital Direction

55 Community Sentences s.177 of Criminal Justice Act 2003 Mental health treatment requirement (s.207) Drug rehabilitation requirement (s.209) Alcohol treatment requirement (s.212) Youth Rehabilitation Order (Criminal Justice & Immigration Act 2008) Mental health treatment requirement Drug rehabilitation requirement Intoxicating substance treatment requirement

56 Mental health treatment requirement Defendant requires and may be susceptible to treatment a requirement that the offender must submit, during a period or periods specified in the order, to treatment by or under the direction of a registered medical practitioner or a chartered psychologist (or both, for different periods) with a view to the improvement of the offender s mental condition. Recommendation from s.12 doctor

57 Risk assessment Type of violence Likely victims Likely level of psychological harm Situations and warning signs Historical factors Dynamic factors Protective factors Structured Professional Judgement

58 Risk management Informed by risk assessment Focus on dynamic factors Treatments Least restrictive environment

59 Family Court Proceedings Public law proceedings Care proceedings Private law proceedings Disputes between separated parents about their children

60 Family Court Proceedings Non-adversarial More inquisitorial Less emphasis on which side wins More emphasis on deciding what is best Court must give permission for instruction of an expert Court decides which documents can be disclosed Court authorises examination of child May limit to one psychiatric examination

61 Family Court Proceedings Instructions Usually joint instructions Jointly agreed letter standard format Official Guidance Requirement that experts are kept updated of progress Access to documentation

62 Family Court Proceedings Discussions Any discussion with professionals should be recorded Experts meeting May be directed by court Often via teleconference / video link Usually chaired by solicitor for the child(ren) Usually involve experts from different disciplines Agenda in advance

63 Issues in family court proceedings Capacity of adult / child nearing 18 to conduct the proceedings Assessment of child(ren) Health Development functioning Aetiology Prognosis

64 Issues in family court proceedings Assessment of parents Mental health Cognitive assessment Forensic risk assessment Factors which explain harmful or neglectful interaction with the children Ability to fulfil children s needs What interventions / support do the parents require?

65 Issues in family court proceedings Alternatives for fulfilment of children s needs What sort of placement is required? Contact arrangements

66 Further information Expert Psychiatric Evidence by Keith Rix, RCPsych Publications Expert Witness Institute The Academy of Experts RCPsych guidance GMC guidance BMA guidance