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“Tales of the Un-experted” (sorry)

CAFCASS have just published a study looking at experts – their use in proceedings, what type is being used, who asked for them, were they helpful?

 http://www.cafcass.gov.uk/media/149859/cafcass_expert_witness_research_6.2013.pdf

 It is interesting, although on their study of whether the use of the expert was beneficial, I think it would have been amazingly helpful, rather than just asking the Guardian in the case if they found them to be beneficial (which is in itself a huge leap forward, we’ve never even done that before)  the study or a subsequent one could ask the Judge

 

  1. Did you find that report helpful in reaching your conclusions?
  2. Looking at things now, after the conclusion, was the obtaining of that report worth the waiting time?  [ie, was it “value for time”]

 

 

This is what I found interesting about it though, in the Guardian’s analysis of whether the report was beneficial or not

 100% of the drug and alcohol tests obtained were found to be helpful

100% of the paediatric reports obtained were found to be helpful

But only 75% of the psychological reports obtained were found to be helpful

 Given that psychological reports are the most cash-expensive AND time-expensive, the fact that even Guardians (who in my view were being a bit generous with how useful they found reports) found only 3 in 4 of these reports to be helpful is STAGGERING

 The report also headlines that since 2009 there has been a massive drop in the instruction of independent social workers – from about 33% of cases then to about 9% now.  (That is probably a lot more to do with them being starved out of doing the job and thus not being available than any reduction in need for them, rather than, as some of the reporting I have seen of the report, that it shows how we have been busy embracing the Family Justice reforms)

 The study also shows that, so far as Guardian’s were concerned, the quality of the pre-proceedings work done by the LA, or the prior involvement of the LA had no impact on whether or not an independent expert was instructed.

 [The report goes on to cite 3 individual cases where Guardian’s had felt that poor social work had been the cause of the instruction, but of a survey of 184 cases this is statistically not significant]

 

Actually, the Court was rather more likely to instruct an expert if there had been historical social services involvement than in cases where little was previously known about the family prior to proceedings. (still scratching my head about that one)

 

The other interesting piece of information from the study (given the drive to cut down experts) was the breakdown of what discipline contributes what proportion of the assessments commissioned

 

The largest by far was psychologists, accounting for 35% of the experts instructed  (and we know now that this means that about a quarter of those were unhelpful, or nearly 9% of all expert reports commissioned by the Courts. You’re welcome)

 

The next largest group was adult psychiatrists – coming in at 20%.  I would suggest that this is going to be a difficult group to screen out of the system. One tends to go to an adult psychiatrist because there is a mental health or substance misuse issue that requires expertise over and above that that a social worker or Guardian can give. Even a talented and skilled Guardian or social worker can’t tell you what the prognosis for mother’s bi-polar disorder will be now that she has switched to different medication.

 

 

[Honestly though, I think that gathering this information has been a really useful start, and I would really really welcome a follow-up study where the Judiciary are asked on those sample cases, whether the expert report was beneficial and represented “value for time” for that child, submitted of course in an anonymised way so that we get the statistical information but that the judical feedback is kept apart from the actual case]

And in case my clunky pun has got you hankering after seeing a silhoutted woman dancing in front of a roulette wheel whilst playing cards are thrown about, and you have been singing “doo-doo-doo, noo-no0-noo doo-doo-doo” during your reading, here it is :-

http://www.youtube.com/watch?v=Oc46Gk-6qrA

 

When to apply for prior authority (and how long the LSC thinks assessments take)

There has finally been some guidance published about this vexed issue. You may recall previous anguished blogs by me about this, most particularly that the last system (“don’t apply for prior authority as it will be refused, and we may arbitrarily slash the number of hours we will pay you for, but you won’t know that until the expert has actually invoiced you”) wasn’t really that workable if you factored in that (a) experts actually wanted to be paid and (b) solicitors actually wanted to get the money to pay them from the LSC, rather than out of their own pocket. Selfish of both of them, I know.

http://www.justice.gov.uk/legal-aid/newslatest-updates/civil-news/prior-authorities-for-experts-in-family-cases?dm_i=4P,18921,AV9ZJ,45QDV,

1 The LSC’s Standard Civil Contract states that there is a contractual right to seek or obtain prior authority only where: • the rate sought exceeds the codified rates introduced in October 2011, or • the item of costs is unusual in its nature or is unusually large. The guidance includes: • examples of factors that may indicate exceptional circumstances apply • benchmarks of ‘unusual’ hours below which prior authority should not be sought • ranges of hours within which prior authority applications have typically been granted for psychologists and psychiatrists, which represent the most commonly used expert types • details of expert witness information required on detailed assessment.

The guidance also confirms that prior authority is not necessary in relation to drug and alcohol tests – provided that the tests carried out reflect what has been directed in a court order. Case-by-case assessments ‘Typical’ hours outlined in the guidance are not caps. They are intended to help providers make case-by-case assessments about when they can submit prior authority applications. Prior authority itself is not a limit on the number of hours that may be carried out by an expert. Additional expert work hours may be justified on assessment, at the end of the case, to the relevant assessing authority. This may be either the LSC or the court

You are probably already spotting the gap in this new guidance. There is no sentence anywhere that suggests that the solicitor will get paid in full by the LSC for any expert report that comes within hourly rates and the benchmark number of hours. So there is still an element of uncertainty and risk. Hoorah.

But at least we now have the secret benchmarking of hours that the LSC claim to have been using. (I strongly suspect that the actual policy was just ‘cut them in half’, but I am a nasty cynical piece of work and that is just my own opinion based on lots of anecdotal observation)

They consider costs of more than £5000 per funded client to be unusual and need prior authority.

The hours above which prior authority should be applied for are:-

 

Pscychologist  (including child psychologist)  20 hours (for one party)  30 hours (for more)

 

Pscyhiatrist (including child psychiatrist)  15 hours (for one party) 25 (for more)

Independent social worker 30 hours (for one party) 40 (for more)

 

Radiologist (10 hours)

  These benchmarks include all aspects of expert service provision and not just the assessment of parties An item of costs is unusual in nature where, for example, more than 2 parties are to be assessed. The number of hours allowed on prior authority is not a cap on the work that may be done, it is authority for an amount of work based on the known relevant facts of a case at a particular time. Providers are always able to seek to justify on assessment/taxation why a greater number of hours were required

Hmmm, interesting. I’m not sure which psychologists they have identified who can read two lever arch files, assess a parent, prepare a report, possibly attend an experts meeting AND Come to Court to give evidence in under 20 hours, to establish that this is a reasonable level. [Given that most experts a year back were estimating 35 hours to WRITE the report, which I know was egregious padding and part of why they’ve been cut off at the knees, 20 hours seems very low.]

I am also a bit puzzled as to why a paediatric report, which is generally about a tenth of the size gets 75% of the hours, and why it takes an ISW 50% longer to assess a parent than a psychologist.

Also I am intrigued as to how radiologists in many of the cases I have blogged about in 2012 could be expected to have done all of the necessary work in 10 hours.

The guidance also clears up once and for all that Independent Social Workers will only get £30 per hour. You may be aware that there was a separate hourly rate of £65 per hour for “risk assessment” and many had simply attempted to switch over to that. You won’t be able to claim for “risk assessment” now in any cases that aren’t sexual abuse. [This is going to be very problematic for the important role of conducting assessments following findings of serious physical abuse, which is a very specialised piece of work and will now be either £30 an hour or farmed out to expensive and less timeous psychologists]

The Ministry of Justice and the Legal Services Commission have published guidance on how expert services identified as specialist risk assessments will be paid. The guidance highlights the factors that may arise in a case which would point to it being appropriate to pay the risk assessment rate.

Factors that may typically point to the expert service being that of a specialist risk assessment expert include where:

a. The court order specifies that a risk assessment is required; and

b. The work to be done is over and above that requiring independent social work expertise, for example where: • There is a substantiated criminal allegation relevant to the case in the immediate background of the case (such as a conviction or pending proceedings for a sex offence); and • A finding of sexual abuse relevant to the case has been made by a court

c.the report is specifically required to address the risk posed as a result of the above factors.

The guidance also clarifies that in considering claims where independent social work services are provided in non-family matters the LSC will have regard to the rates set out in Community Legal Service (Funding) (Amendment No2) Order 2011. Where there is no comparable rate in the funding order – for example for a social worker providing social work services – the LSC will have regard to the comparable rates for independent social work services in family matters introduced in May 2011.

who assesses the assessors?

Always nice to get a little Alan Moore / Juvenal nod into the title if you can.

The Family Justice Council report on the quality of expert psychologists used in care proceedings (as trailed on Channel 4 news) is up .

You can find it at http://www.uclan.ac.uk/news/files/FINALVERSIONFEB2012.pdf

They looked at 126 reports from 3 courts, and used four independent assessors to judge the quality of the reports, both against the guidance of the CPR and a piece of American caselaw (which I have to confess was unfamiliar with me until today) giving guidance on the construction of expert reports and their own views as to the quality of the report. They found, as you may have heard, that :-

 One fifth of instructed psychologists were not deemed qualified on the basis of their submitted Curriculum Vitae, even on the most basic of applied criteria.  Only around one tenth of instructed experts maintained clinical practice external to the provision of expert  witness  work.   Two thirds  of  the  reports reviewed were rated as “poor” or  “very poor”, with one third between good and excellent.

Without wishing to be unkind, my preliminary view is that they’d obviously got  a particularly strong batch. I have found most psychological reports to be a blend of regurgitation of information already found elsewhere, a statement of the bleeding obvious, recommendations plucked from thin air and if you’re particularly lucky a hefty dose of God Complex thrown into the mix.   [I would add, however, that if you get a really good psychological report, it sings, and makes the gulf in quality even more visible. I’ve got a few psychologists, who are always snowed under and have huge timescales, but always, without fail produce a report that adds something worthwhile to the process. Sadly, their numbers are dwarfed by the people who tell you very little, and take 160 pages to do it]

Here are some of the particular issues that the report considers have been problematic with psychological assessments : -

Research has identified a range of criticisms of psychological reports in general.  These  include occasions where:
Psychological evidence has been presented as scientific fact when in fact it is speculation and conjecture 

There has been an absence of psychological theory;


Evidence has been provided concerning concepts which are not accepted within the field and have not been demonstrated empirically.  At times this has had a negative
impact on the outcomes of proceedings (e.g. with one of the most heavily criticized concepts being that of „recovered memory‟)

There has been a failure to provide evidence which is outside the knowledge of the typical judge or juror  

Psychometric evidence has been submitted as scientific fact when it does not meet the criteria for this (e.g. Daubert criterion).  Rather the evidence  has represented
specialised knowledge at most, with some submitted psychometric evidence based on research and not clinical assessment tools

An over-use of psychometrics, not all of which are applicable to the case being assessed.  Over-use of jargon and speculation, with poor content and style and a
failure to include the data from where inferences are drawn 

The credibility of the source has not been included, with no attempt  made  to evaluate the reliability and validity of the methods used to collect data

Psychological risk assessments have focused on first and second generation approaches (e.g. unstructured clinical and actuarial) as opposed to the more reliable
and valid third generation approaches (structured clinical, with or without actuarial anchoring)

Allegations have been reported as facts

Emotive terms have been applied where these could prejudice a decision

They found that 29% of the reports provided insufficient facts and moved ahead to a conclusion. That 22% had significant missing data but still expressed a conclusion.

To illustrate examples concerning missing data, these are as follows:
- Reports on more than one child which failed to include the data on all children but still cited an opinion on all the children;
- Reports drawing conclusions which have not been mentioned in the report, as noted by one reviewer: “Indicates in conclusion that any individuals assessing this
client should be knowledgeable of Aspergers type characteristics and the impactof this on parenting.  This was never mentioned in the report, or assessed, and
appeared as the last sentence” [rater comment].
- Reports where opinions are presented where data was completely absent, i.e.  “Comments on self-esteem, emotional loneliness, perspective taking, sexual risk,
but include no data” [rater comment].
- Reports where the data is completely missed, “Does not include fact section  –goes straight to opinion” or “cites psychometrics but no scores” [rater comment].17
- Report citing opinion without conducting a formal assessment, “stated that client presented as being of average intelligence without deficits in comprehension or
expression, formal intelligence testing was not undertaken” [rater comment].  
Further examples were:  “he seemed, at times, to be quite a jumpy person with arousal levels higher than an average baseline.  No assessment completed of this”
and “did not assess for personality and yet draws opinion on it”.
- Refers to the opinion of another as their opinion, “Refers to someone else‟s report in response to an instructed question” [rater comment].

Ouch.

They then considered the conclusions against the main body of the report  (a particular bugbear of mine, since if you can’t tell why the conclusions have been reached, how is any professional supposed to explain to their respective client why the expert is with them or against them, and whether they should shift their own position?)
Specific background missing/unclear (1). 34.0 %
Limited opinion (2). 17.0 %
Opinion confused or not clearly explained (3) 17.0 %
No background, just opinion (4) 9.4 %
Some opinions, not linked to factors  (4) 9.4 %
Opinions not substantiated (6) 7.5 %
Questions not answered (7). 3.8 %
No opinion (8). 1.9 %

Okay, the “no opinion” at all has a pretty low score, but that probably still represents from that pool five families who waited for three or four months for a psychologist to help decisions about their future to be made and who got nothing more than an expensive Scooby Doo report  (shrug of shoulders, “I-dunno”)

They found that 60% of the reports had missed the requirements of the CPR for an expert report.

They give some examples of the expert straying into areas reserved for the Judge (I point this out, because in general I agree with the report, but I think the example given here is quite badly flawed and rather weakens some of the other criticisms  –  “I am of the view that these children have all suffered significant harm”   – the ultimate decision on that is of course for the Judge, but there are many, many times when an opinion from the expert as to that is helpful, and generally it is provided as an answer to one of the questions. That, I think highlights the difference between the reports commissioned under the CPR for civil matters and for children matters – the expert is there to help the Court with specialised expertise rather than as a ‘gun for hire’ as happens/happened in civil cases. )

But the report isn’t just a woe-is-me hatchet job, it does go on to make some recommendations. They are worth reading in full, but these are the ones that I considered to be very important

 That instruction of experts should be restricted to those currently engaged in practice which is not solely limited to the provision of court reports.  Only
approximately one tenth of the instructed experts were engaged in practice outside of court work.  This is not in keeping with the expectation of an “expert” as a
senior professional engaged in current practice, suggesting that courts are accessing those whose profession is now solely as an “expert witness”.   There
should be an expectation that  psychologists providing court reports should continue to hold contracts with relevant health, government or educational bodies
(e.g. NHS, Private Health, Prison Service, Local Authority etc) or demonstrate  continued practice within the areas that they are  assessing (e.g. treatment
provision).   This is a means of ensuring they remain up to date in their practice, are engaging in work  other  than assessment, and are receiving supervision for
their wider work as psychologists.  Connected to this, courts should be wary of experts claiming to complete excessive amounts of independent expert work.

 That the instruction is clearly for the expert to conduct all aspects of the work and not graduate psychologists or assistants.  Such individuals are not qualified with
the term „graduate psychologist‟ used to describe those who have completed approximately one third of the required training (e.g. an undergraduate degree in
psychology and nothing more).  There was evidence of their over-use by experts,who were relying on them in some instances to review collateral information and
interview clients.  Courts should only be paying for the expert witness to complete all aspects of the report


Care should be taken with the use of psychometrics and these should not unduly  influence final judgments.   The current research indicated a wide range of such
assessments being used and not all relevant or up to date.  If tests are utilised then experts should be providing  courts with sufficient information to allow them to
judge their quality.  Using the Daubert criteria as a reference for this would assist with the quality of this information (e.g. provision of error rates, evidence of the
theory or method the test was based on), and assist courts to judge how it should be admitted as evidence.

A need for psychologists to provide provisional opinion and alternative opinions.  

The data from which opinions are drawn needs to be clearly indicated to the court.

The use of tested and/or generally accepted psychological theory to support core findings.    Courts are paying for  psychological assessments and this should be
evidenced to distinguish the opinions from those provided by other disciplines

(Hallelujah to that last one.)

The report doesn’t really get into the other side of the coin, which is – are we asking psychologists routinely to assess parents when it is not the right sort of assessment? When I started, psychological assessments were confined to cases where there was some unusual feature or behaviour and the professionals simply couldn’t understand fully and called in a psychologist to advise on that aspect  (I would add that the professionals at that time would have generally been a social worker very skilled and experienced at assessing families rather than a ‘commissioner of assessments’ and an old-school guardian whose role was to dig into the LA work with the family and see if things ought to have been, or could have been, done differently).  Now, a psychological assessment is routinely considered in neglect cases, where common sense tells everyone concerned that the problems are either motivation, lack of comprehension of what is needed to run a family in a non-chaotic way, or exposure as a child to poor parenting and thus no internal models of how to parent.

We go to psychologists when a social work assessment is what is needed. It is one of my main bugbears with both the Family Justice Review and the LSC cost-caps, that the ISW reports which are independent, swift, cost-effective and actually genuinely informative are sneered at and undermined and costs slashed to the point of extinction, whereas the bloated and we see often of varied benefit escape that exercise.

Rant over !

I was reading a case today – notably this one 

L (Children) [2011] EWCA Civ 1705

 in which Lord Justice MacFarlane manages to squeeze more elegance into one paragraph than most mortals can dream of  – thus

“In terms of clarity, thoroughness and overall structure, this judgment by HHJ Dowse is exemplary.  No criticism is made during the course of this appeal in respect of the judge’s detailed directions to himself as to the law.  In short, on its face it is a gem of a judgment but this appeal rightly raises the question, despite its sheen, is it nevertheless flawed?” 

The appeal is considering some very specialist medical evidence, centring around whether two children who had died did so of unnatural causes, or of some medical condition; and what impact that had on the likelihood, or otherwise of future harm to the siblings. More than that, however, the Court had to wrestle with the hypothesis that the cause of the children’s deaths might be as yet unknown to medical science, and thus unquantifiable. The experts were, no doubt through very careful, appropriate and skilful questioning, drawn towards placing some percentage chance on that possibility – two felt that the chance of the cause being non-accidental was around 90%, and one felt that it was no higher than 70%.  Both, of course, result in it being open to a Judge to make a finding that it was more likely than not that the deaths had been caused non-accidentally and go on to derive a likelihood of harm to the younger children.

But it struck me, that here were doctors, extraordinarily eminent in their field and capabilities – with demonstrable, verifiable and repeatable empirical evidence – they had been able to conduct tests and establish the presence of a particular gene variant; yet prepared to tell a Court that effectively their science only goes so far, and that there are possibilities that we do not yet know of, that in years to come might very well dramatically tip those percentages given above.

It reminded me of RE R (A CHILD) sub nom R (CARE PROCEEDINGS: CAUSATION) (2011) [2011] EWHC 1715 (Fam)       Sadly, I don’t have a link on that one – but the facts are fascinating – a serious head injury, coupled with a leg fracture. The Court grappled with the medical evidence, and one medic in particular outlined to the Court that there was a school of thought in relation to head injuries amongst medical specialists which simply accepted that at present, we just don’t know enough to be confidently certain and making bold diagnosis about causation of injuries.

Again, that’s an expert who has the basis of science and empirical evidence behind them. There are scans and tests, and results, and what one expert sees on the scans, another would see (though they might come to different conclusions about the cause, they’d agree on the nature of the injury)   And yet, within care proceedings, one never sees that with psychologists – a Socratic acceptance that we don’t yet know everything, and we are making our best informed guess at it, based on the information and techniques that usually work.  A key difference for me, is that the medical experts are looking at something which has happened, and can look carefully at the evidence that supports such a diagnosis, whereas the psychologists are taking something as generally unpredictable as human behaviour, and what someone might do in six months, a year, and making predictions about the future for that person – notwithstanding that the sort of person who often goes to see a psychologist in care proceedings is doing so because they’ve lived a life doing non-rational and unpredictable things.

I personally think that the doctors who spoke up in those hearings and said effectively “It would be lovely to be able to tell you that I’m SURE that this was an accident, or not an accident, or organic in cause, but all I can be SURE of, is that we can’t be SURE”    – my more cynical youth would have speculated that they were making a name for themselves as helpful people to call if you wanted a counter-opinion, but I think with the benefit of age and experience, that they were just calling it truthfully.

If the people who are telling you, with tests and X-rays, and chemical analysis, that they can’t be certain of what happened in the past; how can we put so much stock in the people who tell us with no hard science that they’re sure of what is going to happen for this child in the future?

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