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Seven!

 

Sorry, am thinking of the Experts on Strictly…    The Government have determined the standards for expert reports in care proceedings. From the press releases, you would think that these standards would transform the expert reports that the independent study showed were pretty ghastly and not fit for purpose in a significant number of cases, particularly given the cost to the taxpayer and the delay for children that obtaining them often caused.  

As usual with modern government, you can find press releases and news reports of the launch – plenty of stuff saying how marvellous the new arrangements are or will be, but finding the actual substance underneath all of the fluff is always difficult. That’s what I’m here for

 

The link is here: – https://consult.justice.gov.uk/digital-communications/expert-witnesses

 

But as the standards are so skimpy   (sorry, thorough, but condensed into short, practical guidance) I have just set them out in full here. 

 

[I wrote on this before at the time of the consultation, and am disappointed to see that the formulation of ‘has been active’ rather than ‘is active’ survived to the final draft. I wrote then, and I re-emphasise now, that I am aware of experts who have done nothing but Court work in the last two decades if not longer, and they still meet this test because ‘has been active’ doesn’t even have a ‘recently’ caveat.   One might also think, given how fast the law on adoption has been developing that the expert might be obliged to keep up to date with the legal requirements before recommending options]

 

The Final Recommended Standards

‘Standards for Expert Witnesses in Children’s Proceedings in the family court’

Subject to any order made by the court, expert witnesses involved in family proceedings (involving children) in England and Wales, whatever their field of practice or country of origin, must comply with the standards (1-11)

1. The expert’s area of competence is appropriate to the issue(s) upon which the court has identified that an opinion is required, and relevant experience is evidenced in their CV.

2. The expert has been active in the area of work or practice, (as a practitioner or an academic who is subject to peer appraisal), has sufficient experience of the issues relevant to the instant case, and is familiar with the breadth of current practice or opinion.

3. The expert has working knowledge of the social, developmental, cultural norms and accepted legal principles applicable to the case presented at initial enquiry, and has the cultural competence skills to deal with the circumstances of the case.

4. The expert is up-to-date with Continuing Professional Development appropriate to their discipline and expertise, and is in continued engagement with accepted supervisory mechanisms relevant to their practice.

5. If the expert’s current professional practice is regulated by a UK statutory body (See Appendix 1) they are in possession of a current licence to practise or equivalent.

6. If the expert’s area of professional practice is not subject to statutory registration (e.g. child psychotherapy, systemic family therapy, mediation, and experts in exclusively academic appointments) the expert

should demonstrate appropriate qualifications and/ or registration with a relevant professional body on a case by case basis. Registering bodies usually provide a code of conduct and professional standards and should

be accredited by the Professional Standards Authority for Health and Social Care (See Appendix 2). If the expertise is academic in nature (e.g. regarding evidence of cultural influences) then no statutory registration is required (even if this includes direct contact or interviews with individuals) but consideration should be given to appropriate professional accountability.

7. The expert is compliant with any necessary safeguarding requirements, information security expectations, and carries professional indemnity insurance.

 

 

 

8. If the expert’s current professional practice is outside the UK they can demonstrate that they are compliant with the FJC ‘Guidelines for the instruction of medical experts from overseas in family cases’

 

9. The expert has undertaken appropriate training, updating or quality assurance activity –

including actively seeking feedback from cases in which they have provided evidence21

– relevant to the role of expert in the family courts in England and Wales within the last year.

10. The expert has a working knowledge of, and complies with, the requirements of Practice Directions relevant to providing reports for and giving evidence to the family courts in England and Wales. This includes compliance with the requirement to identify where their opinion on the instant case lies in relation to other accepted mainstream views and the overall spectrum of opinion in the UK.

 

 

Expectations in relation to experts’ fees

11. The expert should state their hourly rate in advance of agreeing to accept instruction, and give an estimate of the number of hours the report is likely to take. This will assist the legal representative to apply expeditiously to the Legal Aid Agency if prior authority is to be sought in a publicly funded case.

 

 

[I’m afraid, channelling Mr Revell-Horwood, this is at best a Four. A-bys-mal]

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

6 responses

  1. I agree completely: they had an opportunity to make big changes, but these standards are very much the bare minimum.

    However we’re involved in an MOJ project to look at expert reports in family law cases (http://www.carterbrownassoc.co.uk/Carter_Brown_to_help_with_MoJ_expert_witness_research–post–102.html).

    Hopefully this might result in more rigorous standards being applied. Good expert witnesses have been victims of the incompetence of a minority for too long.

    • I would agree that a few (high volume, cut and paste, grab the work) bad apples have made things very difficult for the good psychologists. Of course, the caps on hours placed by the LAA don’t help. By the time you’ve read two lever arch files, there’s not much time to actually spend with the people you are meant to be assessing, And also, the drift in the last ten years to throw cases that weren’t really psychological in nature at psychologists as though there was always a magic bullet probably didn’t help. When I have gone to a reputable psychologist with a genuine psychological aspect to the case and a half-decent letter of instruction, I’ve had good reports as a result. There’s that phrase in computer programming – Garbage In, Garbage Out.

      My grumble in this piece is more about the chasm between the reporting of these new protocols as being game-changers and the flimsiness of what they actually are.

  2. What ‘Independent study’ was it you were referring to re: the ghastly, waste of money, not fit for purpose, delay inducing expert reports? Was it the study by Professor Ireland or has another one slipped in below my radar? It would help to know as there has been a lot of ‘discussion’ amongst the expert witnesses on this one and it may be that some would like an opportunity to respond..

    • Yes, the Ireland one – I am aware that the study is hotly disputed by psychologists – I’ve blogged previously about some of its flaws (not peer-reviewed, seeming to place far too much emphasis on the civil procedure rules and obscure american case-law), but if this protocol was intended to fix the problems with expert reports it doesn’t touch the sides. (The bad ones, I mean. There are of course, good psychologists whose reports tell you things that you didn’t know and unlock the case and make a difference, and what we want is far more of those people, and far more of the mediocre ones reaching that sort of standard)

      • I think Jane Ireland made some good points in the study in highlighting the need for those Instructing Psychologists to make some basic checks on the level of seniority, qualifications and experience of those doing the assessment, but in some ways that is the essence of the problem which I am not sure the new standards do much to rectify.
        To get a good assessment and report, the Instructing Solicitors have to know exactly what, psychologically speaking, the key issues are and then exactly what type of Psychologist is needed to best answer those questions. That, to me, is the challenge, and in reality anyone who is professionally regulated by the HCPC and Chartered by the BPS would have been professionally obliged to do pretty much what the new standards state anyway (ie don’t report on cases in areas you are not qualified in and have no experience of).
        It concerns me that, on the one hand, the standards are expected to ensure high quality assessments (which any decent Psychologists would want to produce anyway as who wants to be cross examined on less than their best, most thorough work?) but on the other hand, experts have no control over what they are asked to do, and in the new climate this can verge on bizarre. For example being asked to assess the impact of the parent’s psychological needs on their ability to meet the specific emotional, medical, developmental and cognitive needs of their 12 year old child, who has complications in most areas of their development (but is perfectly capable of expressing themselves) – and to undertake this assessment without seeing (or assessing) the child, and without seeing the parent with the child (or being able to see or consider the sibling relationships and attachments in the family).
        I can only imagine this kind of Instruction is an attempt to focus on key issues but actually it results in lots of unanswered questions which no doubt makes it appear that the expert is being awkward or unhelpful but which, in reality, would be unprofessional to answer in the absence of being able to do certain types of assessment and have access to certain types of evidence.
        The current zeitgeist appears to be that experts deliberately undertake lengthy assessments and write huge reports for nefarious purposes (such as raking in more LAA hours) and that we therefore need to be kept firmly in line (in the unlikely event that we are used at all).
        What is sadly missing is any sense of dialogue between the ‘customers’ and the experts which recognises that it might be worth asking the experts for some clear and specific documentation listing the kinds of potentially useful issues they can address in Public Law and similarly some documentation from the customers (be that Parties or Judge) listing the kinds of key issues they most commonly want dealt with in Care Proceedings. If there is any overlap (and it would be a bit scary if there isn’t) then there could be some best practice type protocols provided, by an expert witness advisory group, for the most commonly instructed areas setting out what kind of experience the professional would need, approximately how long such an assessment would take (and why). LAA might like to use it too instead of making up their own maximum hourly benchmarks for cases on a ‘two for the price of one’ basis.
        The above may be too unwieldy or be seen as too prescriptive however it might re-introduce some balance into the system by acknowledging that there are cases (complex mental health for example) that do need an expert opinion and, just like you wouldn’t tell your surgeon which bits of his operation you felt he could do without, to speed it up or reduce the cost, most experts do actually have professionally valid reasons for doing the kinds of assessments they do. Maybe it is worth asking experts how they think they can do assessments in proceedings more quickly and efficiently, instead of assuming that we are incapable of change and seeking to make us an unwelcome ‘last resort’.

      • Very good points Lisa. It is very hard to fathom, having done other areas of work, why so much of family justice has no feedback system in place. It was one of the main threads of the Family Justice Review that the system simply doesn’t collect the management information you would need to see whether things are working and remedying facets that aren’t. That sadly got lost in the dash to targets. [As did a lot of the other, more subtle recommendations – the “do it in 26 weeks” is nice and simple for politicians to understand, and nice and simple to measure. job done]

        There is nothing in place for an expert to tell the lawyer that the LOI was unfocussed and muddled and missed the real issues, nothing in place for Judges to tell the experts whether the report was helpful, nothing in place to sift good experts from poor ones, or to help the poor ones realise what it was in the report or approach that people found unhelpful. And most peculiar of all, nothing in place to feedback the long-term results of cases. The short-term result – the Judge made this order, we tell the expert. But what they really need to know, surely, is in those cases where their recommendations were followed, how did that work out for the family.

        I was hoping that the new Protocols would address that sort of thing, and also proper rigour on use of psychometric tests and particularly that the work ought to be carried out by the expert instructed not to other more junior colleagues, and most importantly that the expert should do a mixture of forensic Court work and practical work in the field. As you identify, all this Protocol does is set out a bare minimum of things that any expert would have been doing anyway.

        There is a rather unfair narrative that experts caused all the delay, so get rid of them; when the truth of the matter is that the family justice system commissioned multiple experts without really knowing in every case why it was they were needed. If we hadn’t been using so many, in cases where they weren’t needed, expert availability would have been there without delay for the cases that properly merited that expert view.

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