Category Archives: experts

The problem of the hanged man

Posted on May 3, 2012 by suesspiciousminds

 

Bear with me, this is going somewhere.

So,  a man is sentenced to be hanged to death for a crime. He hears the verdict and the sentence, and then addresses the Court. He explains that he knows he has done wrong and that he must pay for it, but that what he wants is to sleep in peace on his last night on earth, and asks if the Judge would agree that he should not know, for certain, when he goes to sleep that he will be hanged the next day. The Judge agrees. He will be hanged sometime in the next week, the Judge tells him, and this is all put down carefully into an official order. He cannot be hanged if he knows for certain the night before that the next day is the day he will be hanged.

 

And at the end of the week, he is not hanged, and goes free.

 

Answer at the end.

 

Now, as some of you may know, the 26 week time cap for new proceedings has been brought in, without fanfare, hullaballoo, announcement or even legislation. None of the new arrangements which will make it possible for the proceedings to conclude in 26 weeks (best interest adoption decision being removed, no more argument about care plans, greater respect for social work evidence, less experts) have come in, but there’s a new computer system that says all new proceedings will end in 26 weeks and the Courts have to give reasons why.

 

So, let’s look at 26 weeks, which might sound initially like quite a long time (it’s more than twice what the original inventors of the Children Act envisaged would be needed to crack all but the most difficult cases)

 

By week 26, we need to have a final hearing. So, let’s work on the basis of a 5 day hearing, at which the Guardian, social worker, allocated judge (since we’re going to get judicial continuity now) and any experts can attend. Let’s be optimistic and say that the Court listing will be able to magic that availability for us with no more than 2 weeks notice.

 

So, by week 24, we need to have our IRH and tell the Court that we need a final hearing and 5 days of Court time. Let’s also, for the sake of argument, have the Guardian file on the same week as the IRH.

 

So, by week 23, giving the Guardian only a week to see the parents evidence, which won’t be late, because it never, ever is, we need the parents to file.

 

By week 21, we need the LA evidence (I squeezed the Guardian down from the usual 10-14 days to seven, but really, the parents do need two weeks to see the LA evidence). If it is an adoption case, the Agency Decision Maker will need to have authorised the Placement Order application the same week. Let’s pretend that can be issued and not lost or misplaced by the Court and served on everyone in a week, just for giggles.

 

So, by week 20, Panel need to have considered the case and made a recommendation to the Agency Decision Maker – there has to be a seven day period for that, until the law gets changed.

 

Let’s be more ruthless and say that the time that Panel members get to see the expert report is cut from the current 3 weeks, to 2  (because the Social worker has to submit a Child Permanence Report to Panel and needs to know what the expert says before that can be finalised. And the law that says Panel have to read the expert report is still law (I hesitate to say ‘good law’)

Thus, by week 18, the expert report needs to be completed.

Now, let’s work from the other end, and see how long the expert gets to do their report, because 18 weeks looks like AGES.Four and a half months.

The proceedings are issued and the clock starts. The first hearing is at the end of week 1.

 

Assuming everyone moves quickly, let’s have a CMC in week 2. Unlikely, but let’s assume we do. And let’s assume that in that week, the parties have considered all of the papers and agreed not only what sort of experts they need, but who they should be, and found out timescales.

 

Lets go further crazy, and assume that the Letter of Instruction is agreed and finalised in Week 3, and that the LOI and papers go off to the expert in Week 4. There’s no hold-up in getting any additional disclosure, or medical records, or documents from past proceedings or other local authorities, or private law proceedings, or police disclosure. Hooray for simplicity.

The expert then has from week 4 to week 18 to do a report. Fourteen weeks. Three and a half months.

But don’t forget, that the expert can’t see anyone until the parties all have their Prior Authority for public funding in place. Let’s be wildly optimistic and say that that takes a fortnight.

 

So, by week 6, the  expert is ready to go, and has 12 weeks to do the report. Don’t forget, that the expert has to be available in weeks 25 or 26 for any contested final hearing.

 

I just don’t think that this is feasible. Worse than that, it means that when the parent sees the expert to demonstrate that they have changed sufficiently to justify a positive care plan, they have not had 26 weeks to make that change, but probably 14-15 weeks, just over half the time. If they are someone with substance misuse problems, or anger issues, they’ve probably just started with any intervention – if they need therapy, they might have got a GP to make the referral but won’t have had any counselling.

 

My point is – you can’t roll out the timescales independently of the new way of working which is going to make cases achieveable in those timescales. Even with a case where nothing goes wrong, you can’t do it on the PLO model and just say “do it in half the time it currently takes”.   The new 26 week cap is going to head slap-bang into “we need this expert, and he can’t report till week 22, so the timetable won’t work, expert instruction refused,Court of Appeal”

 

You can’t have a 26 week system where parents need to be able to demonstrate change by week 18 unless there’s something in place for them to help them make those changes. You could try a model where we divert all the money that’s currently spent on diagnosis onto treatment – task-centred and swift interventions and supports that are ready to roll out and begin once the referral is made, but they don’t currently exist and the funds aren’t there for them. So, if you roll out a 26 week cap without any sea change as to the way proceedings are done, you’re going to end up with a shed-load more cases in the Court of Appeal and a shed-load more cases that end with children in Care, since you haven’t given any ability for the parents to change from the low-point that generally exists when proceedings are issued.

 

And back to the hanged man – he knows he can’t be hanged on Sunday, the seventh day, because if he goes to bed on Saturday, he knows for certain that he’ll be hanged the next day, and that’s prohibited by the order. So, they can’t hang him on Sunday. Which means the latest they can hang him is Saturday. But now he knows that, and so if he goes to bed on FRIDAY, he knows for certain that he’ll be hanged the next day, because there’s only Saturday and Sunday left, and they can’t hang him on Sunday. And so on.

 

 

 

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subdural haematomas, fractures and rickets

Posted on April 24, 2012 by suesspiciousminds

This is a case which has been in the news lately. I was tempted to write a blog on it, but I have to be frank and say that the summary prepared by Leading Counsel in the case which appears here :-

http://www.familylawweek.co.uk/site.aspx?i=ed97208

would be hard to be bettered.

I think that Islington were in an extremely difficult spot here. On the one hand, the case did not go before a Jury in the criminal trial because the trial Judge did not consider that it would be possible given the medical evidence for the criminal standard of proof to be met.  (It may have gone higher than that,  since it wasn’t even put before the jury with a direction to acquit, and it may have been that the criminal summing up went very close to saying that the defence were right)

But Islington were faced with medical professionals in their area saying that the injuries were as serious as it is possible to be, and were on the balance of probabilities caused non-accidentally, and faced with another child of the family.

They had a tough decision to make – either no intervention at all (since if the American experts were right, the parents had done nothing wrong and suffered a huge tragedy AND had that compounded by a criminal trial) or place the issue before the Court to establish whether it was more likely than not that the younger child was at risk.

It is of course, awful, that the parents had to go through not only their loss, but two sets of legal proceedings to defend themselves and reach the truth, and that this process was no doubt gruelling, distressing, arduous and all consuming.

But I think those who criticise Islington for bringing the case perhaps misunderstand the position that they were in – it wasn’t a second bite of the cherry, but an untenable position that was only capable of being resolved by either the Local Authority taking a gamble that the American experts had been right and there was no risk to this child (and who would have been defending them had they taken that gamble and been wrong) or saying to a Court – this is beyond our scope to decide which set of medics is right, and that’s what you’re there for.

The Court could have taken a very robust view of the case at a really early stage and said, having viewed the criminal papers, it is understandable that the Local Authority have brought this case but there is no need for a finding of fact hearing and the Court is satisfied that the threshold isn’t met. That would effectively have taken that burden of managing an unknown risk off the shoulders of the Local Authority. The Court did not do that. The fact that the Court decided that the issues in the case had to be resolved by a four week finding of fact hearing meant that the issues were difficult and needed careful thought and resolution.

It might be, I know not, that when the evidence was heard, it was all blindingly obvious what the correct version of events was, but it wasn’t blindingly obvious until that process began, and I think that everyone involved in this process was just in a really difficult situation.

 

[Caveat – there’s obviously a large range of nuance that can be applied by a Local Authority in this situation, from the extremes of “We don’t believe that these parents did anything wrong, and invite the Court to give a brief judgment to that effect” to “the LA firmly believe in the medical views expressed by the Great Ormond Street medics, and seek the highest findings” and where this LA positioned themselves on that wide scale is probably critical]

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“ISW this a dagger I see before me?”

Posted on April 23, 2012 by suesspiciousminds

 

 

(Sorry, there’s not much scope for puns around Independent Social Workers. Most of the humour in ISW work at present is in the LSCs idea that they are worth only ¼ of the fees a psychologist can charge for doing a similar task)

 

 

 

The independent research into the quality and efficacy of Independent Social Work reports is now available. The report was carried out by Dr Julia Brophy.

 

The report can be found here: –

 

http://www.ciswa-uk.org/wp-content/uploads/2012/04/PDF-FINAL-REPORT-EVALUATION-OF-ISW-ASSESSMENTS-FOR-CARE-PROCEEDINGS-FINAL-18-Apr-2012.pdf

 

The keen-eyed will note that Dr Brophy is a different person to Dr Ireland, who did the same task on psychologists.

 

One might think that it would have been helpful, if you were carrying out research into court experts in two disciplines, to have the same team carry out both assessments, but that would involve introducing common sense into the equation.  (Perhaps we have a third report in the wings on psychiatrists)

 

One might also think that if you were doing research into whether psychological assessments and ISW assessments were useful and fit for purpose that you might look at the outcome of that research before deciding that one group could have their hourly rates cut down to £30 per hour, whilst the other group get hourly rates of £130 per hour.

 

But heck, what’s wrong with Red Queen justice – sentence first, verdict later!

 

 

 

Pink Tape has done a very good article on this report, written by Noel Arnold  (getting in first, whilst I have been busy puppy-wrangling)  :-

 

 

Use of Independent Social Workers in Care Proceedings

 

 

 

I think the report does get some important stuff wrong – deciding that because a Local Authority is a joint party to the instruction of the ISW that means that they are supportive of the instruction is not necessarily right.  Being party to the instruction means that you were told you had to pay for a share of it. Sometimes that will mean the LA were champing at the bit to get an ISW involved, sometimes it will meant that they have bowed to the inevitable that it is better to have a report that won’t be accused of bias and prejudging the outcome, sometimes the ISW can do it quicker than the LA can do in-house and sometimes the LA will protest with varying degrees of success about instruction of another expert and the protest will fall on deaf ears.

 

So, it did slightly trouble me that the report considered that because the LA were involved in the instruction of the ISW in 65% of cases and were the sole instructing party in 15% that there is something to be drawn from that in terms of whether the LA was a driving force behind the assessment.

 

(Which is not to say that all LAs at all times oppose all ISW instructions – rather that sometimes they are the right thing on a case, and sometimes they are not)

 

 

 

 

So, what are the headlines?

 

 

Concern has been expressed that ISWs simply duplicate existing parenting assessments, that they cause delay and that there is a high use by parents seeking ‘second opinion’ evidence based solely on claims under Article 6 under the ECHR. Findings from this study do not support those concerns.

 

It was found that ISW reports mostly provided new evidence not already available to the court. This is already in line with recommendation 3.132 of the FJR.

 

In the absence of changes within cases and purposeful delay, ISW reports were almost always delivered to the date specified in the LOI. There was no evidence that reports delayed scheduled hearings.

 

There was no evidence of high use of ISWs by parents seeking second opinion evidence based solely on Article 6 claims under the ECHR – indeed as a ‘stand- alone’ application in this sample this was rare. Perhaps Article 6 is used in a ‘make weight’ argument but arguably it would be unlikely to succeed unless there were real weaknesses in an existing assessment or clear evidence of bias.

 

Findings indicate that courts would be severely hampered in the absence of access to the body of expertise and the evidence provided by ISWs – not least in case managing to meet the 6 month deadline for care cases recommended in the FJR90 and accepted in the Government’s response to it.91 Any legislative changes and adjustment to the Family Procedure Rules and Guidance would need to reflect an understanding of that finding.

 

Moreover as expert witnesses for the court the evaluation identified that ISWs have ‘added value’. They are able to engage with difficult and disaffected parents where, for whatever reason, relationships with the local authority are frequently at an impasse, where parents and children face a powerful state agency and where certain child welfare questions remain outstanding. While the independence and status afforded by the court process cannot be underestimated, that alone does not explain the ISW’s success in this regard.

 

Alongside considerable skills and experience in assessing vulnerable parents and children within care proceedings, other values follow from the ISW’s role and responsibilities as an expert for the court:

 

Independence (from all parties but with an overriding duty to the court to observe the paramountcy of the best interests of the child)

 Demonstration of ‘balance’ in reporting the outcome of the assessment process and key findings

 Ability to spend sufficient time with parents and engage in reflective practice

 Skills in observation, interpretation and analysis of information

 Clear specification of what is needed from parents and others to demonstrate capacity for change – and what they might have achieved so far

 Use of research in presenting issues and opinions

 Provision of a report which is evidence-based and forensic in method

 Ability to work to instructions posed by parties and by the court and for the most part, answering all the questions posed

 Ability to draw out key hypotheses in a list/hierarchy of questions posed

 Delivery of reports on time

 Provision of skills and expertise tailored to the specific needs of the case (e.g. in assessing parents with a learning disability, where there are allegations of sexual abuse, domestic abuse etc).

 

 There has been something of a misconception in the debate about independent social work practitioners in care proceedings: their work has been portrayed as simply doing what social workers do (i.e. fulfilling the welfare task). That is not correct: whilst they undertake a welfare task providing high quality welfare reports, they also have an additional role. It arises from their duties and responsibilities to the court as an expert witness and permits them to undertake tasks for the court which a social worker – as a professional witness for the local authority – cannot. Moreover the work of the ISW can move cases forward in a way not achievable by local authorities or children’s guardians.

 

 

 

 

Those all seem, at first blush, to be pretty positive conclusions  (so positive in fact that I spent time scouring the report to make sure it wasn’t just a PR-puff commissioned by a group of ISWs to promote their services) ; and not terribly in keeping with the twin attacks of the FJR  (ISWs are just telling us stuff we already know and should be frozen out) and the LSC  (ISWs aren’t as good as psychologists and should be starved out)

 

I think both the LSC and the FJR have fundamentally misunderstood how difficult it will be on the ground to run cases if Independent Social Workers disappeared from the landscape.

 

They are under the impression that they will have cut costs and cut out a tranche of experts and thus reduced delay and saved money. Hurrah!

 

They have fundamentally misunderstood that all they have achieved is greatly increasing the number of parents who will be seeking psychological assessments in care proceedings.  And those assessments already cost more, and take longer.  (I shall remain silent, if not neutral, on whether they are better or worse in quality).   That situation will not improve as the demand for them goes up.

 

If what you want to know, genuinely, is whether a parent has a psychological condition or barrier that is interfering with their ability to parent, and whether that can be overcome, and if so how and in what timescales, you want a psychologist.

 

If what you want to know is, genuinely, has the social work in this case been proper, rigorous and fair, and might there be another way forward in the case than that promoted by the Local Authority, then frankly, you want an Independent Social Worker  (or an old-school Guardian, but that’s an entirely different debate).

 

If what you want to know is, is there a rent-a-mouth expert who will give me something to fight with at a final hearing because I have a hopeless case, then perhaps you should consider moving into Civil law (and probably also getting a time machine back to the 1980s)

 

I hope that BASW and NAGALRO are going to mount the challenge to the LSC about fees that I have heard whispers of, since it seems to me that the different treatment meted out to two groups of professionals who both have degrees and both have professional expertise and experience is capricious and unreasonable.

 

I am encountering cases at present where I cannot get the ISWs I want to do cases, because they won’t get paid £63 per hour, so I will be ending up having psychologists to do the work at £130 per hour.  I am struggling to see the savings here.  I will have a report which is twice as expensive, takes months longer, and is less on point.

 

What we have is a situation akin to the NHS providing free smoking materials to all, and wanting to cut down on costs by deciding that you can’t get free cigarettes any more, but still letting everyone get free cigars.  We will all just smoke the free cigars, I’m afraid.

 

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who assesses the assessors?

Posted on March 14, 2012 by suesspiciousminds

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 !

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