PRACTICALITIES AND PITFALLS OF WORKING AS A PSYCHOLOGIST

EXPERT WITNESS

Dr Louise Bowers

The Forensic Psychologist Service Ltd

OVERVIEW

• Rules, duties and obligations of the psychologist expert witness

• Practicalities

• Pitfalls: how and why it can go wrong

RULES, DUTIES & OBLIGATIONS

The role of an expert witness is…

‘to assist the court/ tribunal on matters which are outside the knowledge and experience of the court/

tribunal and which, by vir tue of their knowledge, training or experience, are within the individual’s f ield of

expertise’

‘ Their opinions must be objective and unbiased’

DIFFERENT WAYS YOU MIGHT

PROVIDE EXPERT WITNESS SERVICES

• Sole trader - possibly part time -with other roles/ employment

• Working for an agency

• Working as an associate of another company

• Partnership working

• Director of a limited company

IF YOU HAVE DECIDED TO ACT AS AN EXPERT WITNESS, YOU HAVE CERTAIN

DUTIES AND OBLIGATIONS THAT MUST BE COMPLIED

WITH

These rules are outlined in:

• The criminal procedure rules section19, expert evidence

• The civil procedure rules part 35, experts and assessors & guidance for the instruction of experts in civil claims

• The family procedure rules section 25, experts and assessors

• You have to make a standard statement of understanding, declaration of truth and confirm you have read the relevant rules and have complied with them – SO READ THEM!

IF YOU HAVE DECIDED TO ACT AS AN EXPERT W ITNESS, YOU HAVE CERTAIN

DUTIES AND OBLIGATIONS THAT MUST BE COMPLIED

W ITH

These rules are outlined in:

• The criminal procedure rules section19,

expert evidence

• The civil procedure rules part 35, experts

and assessors & guidance for the instruction of experts in civil claims

• The family procedure rules section 25,

experts and assessors

• You have to make a standard statement of

understanding, declaration of truth and confirm you have read the relevant rules and have

complied with them – SO READ THEM!

GUIDANCE ABOUT HOW TO FULFIL YOUR DUTIES AND OBLIGATIONS

ACTING AS AN EXPERT OR PROFESSIONAL WITNESS: GUIDANCE FOR HEALTHCARE PROFESSIONALS (MAY

2019)

• You must hold the appropriate licence/ registration to practise and be in, or sufficiently recently in, practice

• You need to have the necessary clinical knowledge, training and experience to act as an expert witness

• Your expert witness work should now be part of your professional revalidation or continuous professional development (CPD) process

• You are now expected to undertake specific training for being an expert witness

• Failure to meet any of these standards could result in sanctions by the relevant professional body (HCPC)

PRACTICALITIES

GDPR

• Are you registered INDIVIDUALLY with the ICO?

• It is critical that your practice is GDPR compliant. Heavy fines of up to 4% of turnover or £20 million if not

• As a minimum you must have a privacy notice that covers how client’s data is processed

• Transparency and control

• www. ico.org.uk

INSURANCE

• Don’t leave home without it…

• Expert witnesses can now be sued (Jones & Kaney 2011)

• So, you need professional indemnity insurance which specifically covers expert witness work

IF YOU ARE CONTRACTING WITH THE SOLICITOR DIRECTLY

• You should always provide (standard) Ts & Cs in writing

• They should cover fees, charges, travelling (and other) expenses, cancellation policy, payment terms.

• Also provide a separate confirmation specific to the case, outlining agreed instructions, assessment date, report submission date, etc.

• They will set the terms and conditions with the solicitor that you will be working under

• They should provide a copy of the terms and conditions they expect you to work under

IF YOU ARE CONTRACTED BY AN AGENCY/ AS AN ASSOCIATE

TERMS AND CONDITIONS

INSTRUCTIONS

• Discuss and agree these with your instructing solicitor (in writing)

• Guide and offer suggestions if the instruction(s)are vague

• Be flexible and be prepared to revise (and confirm in writing)

• Ask for whatever documentation you require to answer your instructions points

• State if missing information has prevented you from giving a valid opinion

CONSENT

• It is critical that you obtain INFORMED consent from the client for assessment

• Consent form should cover:

• What the assessment will entail

• The process for securing additional information (verbal/written)

• Pros and cons of taking part and the right to choose

• The right to withdraw from the process

• What will happen after the assessment

• Limits of confidentiality

GETTING PAID

• Hourly limits and caps vary between courts

• Fees should be estimated and agreed before you start work and any increases negotiated before the works takes place

• You may have to wait until the case concludes for payment

• If polite requests for payment fail, issue a (solicitors) letter before action and be prepared to follow through

PITFALLS: HOW & WHY IT CAN GO WRONG

NOT STICKING TO THE RULES OR COMPLYING

WITH OBLIGATIONS

• Not remaining within your area of expertise

• Not being objective

• Not exercising reasonable care and skill

• Not being truthful

THE CASE OF MRBRANSTON

• HCPC Registered Educational Psychologist who took instruction in forensic cases and appeared before the Parole Board

• Reportedly to the HCPC (independently) twice

• The HCPC instructed their own expert to assess and advise on the case

• The HCPC concluded that he did not have the necessary knowledge, training or experience

• His opinions put the public at risk

• Struck off

THE CASE OF DR ZAFAR

‘It was a false statement verified by a statement of truth’

‘Deliberate or reckless, it is always serious, because it undermines the administration of justice’

‘Motivated by a desire to keep his report-writing factory running at full capacity’

Found guilty of contempt of court

Sentenced to six months imprisonment

‘ANDRE W AGAR IS NOT AN EXPERT OF SUITABLE CAL IBRE . HE HAD L IT TLE OR NO UNDERSTANDING

OF THE DUT IES OF AN EXPERT. HE HAD

RECE IVED NO TRAINING AND AT TENDED NO

COURSES ’ - HHJ N ICHOL AS LORRAINE

SMITH

‘AN ALLEGAT ION INTO HIS CONDUCT HAS BEEN

REFERRED TO THE NAT IONAL CR IME

AGENCY ’ – POL ICE

‘MR AGAR WILL NOT BE USED AS AN EXPERT

WITNESS IN THE FUTURE ’ - CPS

The Case of Andrew Agar

ESSENTIAL READING

• Acting as an expert or professional witness: Guidance for healthcare professionals (May 2019)

• The criminal procedure rules section19, expert evidence

• The civil procedure rules part 35, experts and assessors & guidance for the instruction of experts in civil claims

• The family procedure rules section 25, experts and assessors

• Guidance on the renumeration of expert witnesses (Version 5: April 19)

• Guidance for the instruction of experts in civil claims (August 2014)

• https://www.bps.org.uk/news-and-policy/guidance-use-psychologists-expert-witnesses-family-courts-england-and-wales

• Jones & Kaney 2011, www.supremecourt.uk/cases/uksc-2010-0034.html

• The Zafar Case, www.bondsolon.com/media/169438/liverpool-victoria-insurance-co-ltd-v-zafar.pdf?&utm_source=exacttarget&utm_medium=email&utm_campaign=Dr+Zafar+Sentence

DR LOUISE BOWERSBA, MSC, FORENPSYD, CSCI, AFBPSS

The Forensic Psychologist Service Ltd

www.forensicpsychologist.co.uk

louise.bowers@forensicpsychologist.co.uk

@theforensicpsy