by Hugh Koch,clinical Psychologist and visiting professor toStockholm University Law School. This is an extract from ‘Legal Mind’ published 2016
The courts in the UK, Canada and USA are increasingly looking to accurately assess the credibility of claimants, and whether evidence is reliable and valid.
A medico legal expert frequently interviews a claimant to establish the injury, psychological or physical, that has occurred, and whether this is attributable to the index event. The seven key medico-legal questions is repeated in Fig XXXII below. Interview information, witness statements and medical and occupational medical records, provide the expert with an array of ‘data’ which he/she diligently considers in order to arrive at the most logical opinion.
The opinion is then ‘tested’ via claimant response, lawyer clarification and debate, followed by between-expert discussion, before occasionally being tested in Court.
Throughout this process there are two factors which the expert must grapple with to arrive at a ‘best-fit’ opinion – reliability and validity.
“Listening to the claimant’s description of feeling low, I had several dilemmas facing me – how depressed is depressed (severity), what and why did this start (causation), what backs this up (validity) and, putting all the evidence together, was my opinion consistent with that of “ten other similarly experienced experts” (certainty)”.
The reliability of a diagnostic process refers to its replicability, or the stability of its diagnostic outcomes i.e., similar results should be obtained from one assessment to another of the same subject, both over time (assuming no real change) and with different evaluators.
Validity is the degree to which a diagnostic process assesses what it purports to assess. The validity of a diagnostic process is closely bound to the validity of the diagnostic
framework it operationalizes, process, encompassing much more that measurement or psychometrics (1). For example, if the concept of the diagnosis of the particular condition in those circumstances in ICD-10 or DSM-V is flawed, this will fundamentally undermine the validity of the diagnostic process. This may be particularly true when symptoms are presented in the context of litigation.
Both these processes are to some degree involved in the medico-legal situation in that ultimately it is only the Court/Judge who has the right to determine fact, ‘truth’ and certainty (see Figure XXXIII below).
Use of Structured Interviewing
To assess the presence and level of psychological symptoms or disorders a comprehensive interview should be carried out. The experienced clinician screens areas for investigation based on:
• Open ended clinical interview.
• Self-report biographical and factual information.
• Specific closed questioning for enhanced focusing.
Presence of symptoms must be accompanied by evidence of severity and duration of symptoms. Clearly the statement “I don’t sleep well now” can refer to several different
types of sleeping pattern. Were this being assessed by a very simple check box approach, a ‘tick’ would appear in the positive box and an opportunity for further information would be missed. Instead the positive response needs a follow-up series of questions in respect of whether the problem is falling asleep, waking up, lack of restorative sleep or disturbance by mental activity or physical pain.
Structured and semi-structured interview formats help clinicians focus their data collection and increase the reliability and validity of their opinion. However, experienced clinicians do not need to solely follow a prescribed structured scheme as they will learn their own questioning pattern, often known as the phenomenological approach.
The use of DSM-V and ICD-10 classifications of mental disorders have significantly improved the reliability and validity of diagnosis of emotional distress, where symptoms can be aligned to a ‘best fit’ diagnosis which can be communicated and discussed between experts and with the Court. However, the Courts should be encouraged to compensate individuals according to disability (i.e. actual loss) and disruption rather than, purely a technical diagnosis.
Within the interview, the clinician listens for descriptions of symptoms which appear unsound or unreliable. The most common indicators of unreliability are shown in Fig XXXV below.
Fig XXXV: Indicators of unreliability
(a) “Blanket” problems and gross symptoms claiming - Almost all areas of enquiry produced claiming discomfort.
(b) Selective Recall - Poor recall of pre-accident traumas (e.g. previous accidents or minimising of pre-accident stress). - Difficult acknowledging evident recent improvement in distress or functioning.
(c) Magnifying Recall
- Use of a single example only to reflect apparent consistent and sustained distress (e.g. when I drove the first time after the accident it was awful).
(d) Discrepancy between self-report and other evidence
- between client and GP information.
- between client and work information.
- between client and relative information.
(e) Production of rare or common symptoms - Claiming unusual, strange, atypical or preposterous symptoms. - Claiming symptoms which are experience by most of the general population (e.g. losing objects, forgetting names occasionally).
Thorough clinical interviewing and data gathering The expert clinician, like the expert lawyer, develops skills over time in “listening” to available information and organising a “picture” of an individual containing:-
(a) facts about the trauma and its after effects;
(b) the individual’s perception of his/distress (physical and psychological);
(c) significant other’s perception of the individual (e.g. family, other experts, GP);
(d) an appraisal of reliable behavioural data on ability and disability; “I can’t lift things” or “I can’t drive” must be backed up by examples of previous behaviours which are now avoided (partially/totally) and frequency of such avoidance to reflect level of disruption.
(e) ‘Networking’ with other experts and/or available reports to try and not only present one expert view, but also facilitate a development of the overall picture of an individual across clinical disciplines/functions (e.g. orthopaedic, neurological or psychological).
In the case of psychologists and psychiatrists, both use one or other of the two classification schemes available to them:
The two diagnostic classification systems of DSM-5 (American Psychiatric Association) and ICD-10 (WHO) allow clinicians (psychologists and psychiatrists) to assess two aspects of trauma – the type of reaction (e.g. stress, anxiety, depression) and levels of severity (acute/chronic and sub clinical or not clinically significant). This has crucial implications for both prognosis and treatment, and quantum assessment. Certain diagnoses, such as post traumatic stress disorder (PTSD) and chronic pain, need extra careful assessment as they have very significant effects on occupational, social and psychological functioning and also have higher quantum implications.
The use or application of one of the two main clarification systems (DSM-5) or (ICD-10) is an ‘Expert System’ i.e., the criteria need to be considered in a dimensional manner (i.e. along a continuum) and in conjunction with clinical judgement and other objective information.
“My client does avoid car travel – this disrupts her life - surely this is a specific phobia DSM-5.300.29?” – This statement needs to be set in the context of neck pain (preventing driving anyway) absence of car to drive, no need to drive and evidence of hire car provision and driving.
Use of neuropsychological and psychometric tests
Claimants often present with neuro-cognitive complaints, irrespective of any cerebral impact or damage. These include memory, concentration, problem-solving and general distractibility. In addition to a clear and succinct clinical and functional description of these difficulties, a neuropsychological assessment is frequently sought to provide statistical, organised and more objective opinion about the severity of neuro-cognitive impairment. In addition, some tests used are also helpful in assessing “effort and engagement” – it is important to know that an individual has provided full and appropriate effort throughout the assessment (e.g. word memory test, visual scanning test.
Questionnaires and rating scales are predominantly used to assess consistency of reporting across different areas by claimants. For example, a claimant who at interview describes severe depression, yet on testing denies the typical symptoms of depressed mood is probably illustrating a use of ‘magnified’ language not consistent with psychological disorder.
In addition to the above, some tests purport to specifically address fabrication of symptoms. These are an additional aid to the clinician in building up the widest picture:-
1. Minnesota Multiphasic Personality Inventory (MMPI) ‘F’ scale – This consists of similar questions asked in different ways which ‘truthful’ clients would answer consistent on and/or without exaggeration or ‘false positives’.
2. Gough Dissimulation Scale (2).
3. Gudjonnsen Suggestibilty Scale (3).
All such test data needs careful interpretation They have been the subject of research attempts at validation in the legal context; many often quoted tests (e.g. Beck DI, BeckAI, HADS, Hamilton, Impact of Events etc.) are not validated in the legal context for diagnostic purposes and need to be used with caution in order to avoid misleading the Court.
When a claimant presents his/her case for scrutiny, initially via interview with medical-legal experts, it is difficult to disentangle the validity, reliability and truthfulness of the alleged injury and its circumstances. In ‘testing the evidence’ the information given must be examined critically to establish if it is consistent with the possible diagnosis and causation. It is difficult for a Judge, or two medico-legal parties, to articulate with precision, the complex interaction of various versions of index event related issues.
Validity, reliability, credibility and truthfulness and certainty are overlapping concepts. They have all become somewhat confusing terms, not well defined and interpreted differently on different occasions. The more precise variables such as they are defined, the more utility they have.
Cases in which challenges involve one or more of these variables must be mounted on substantial, clear evidence and not merely speculation or personal intuition (Murray and Jamieson, 2011). Collateral evidence (disinterested witness or contemporaneous medical) is often the key to ascertaining credibility and certainty.
Evidential Reliability – the legal perspective
When assessing evidential reliability, in 2011 the Law Commission (5) stated that experts should have regard to a number of factors including:
a) The extent and quality of the data on which the opinion is based;
b) If the opinion relies on an inference from any findings, and whether the opinion explains how safe or unsafe the inference is;
c) If the opinion relies on the results of the use of any method (for instance, a test or survey), whether the opinion takes proper account of matters, such as the degree of precision or margin or uncertainty, affecting the accuracy or reliability of those results;
d) The extent to which any material upon which the opinion is based has been reviewed by others with relevant expertise and the views of those others on the material;
e) The extent to which the opinion is based on material falling outside the expert’s own field of expertise e.g. organicity of pain.
f) The completeness of the information which was available to the expert, and whether the expert took account of all relevant information in arriving at the opinion.
g) Whether there is a range of expert opinion on the matter in question; and if there is, where in the range of opinion lies and whether the expert’s preference for the opinion proffered has been properly explained.
The law commission are developing further the concept of the ‘Reliability Test’ in assessing evidence; such test are also know already in the USA (Daubert test in supreme court; Frye test in federal court).
Credibility and Truthfulness
Ultimately the outcome of a personal injury case will turn on whether the claimant has been, or seen to be, truthful in the presentation of their claim.
Credibility involves the assessment of the trustworthiness of a claimant’s testimony based upon the veracity or sincerity of the claimant and the accuracy of the evidence provided – this includes consistency of recall, harmonization with independent evidence, reasonableness of testimony, and the claimant’s general demeanour and presentation.
A distinct problem arises in this area when physical causation is disproven. This leads to the conclusion that causation is psychological – whether conscious or unconscious.
Ascertaining which type of motivation pertains is crucial to a valid assessment and opinion.
Untruthfulness and malingering both require a degree of intentionality, more than just unreliability or inconsistency. As the evidence for dishonest, conflicting responding increases, so the level of likely untruthfulness increases.
The clinical assessment of malingering is complex and requires multiple sources of converging evidence. Experts have an ethical responsibility to report assessment results fairly, accurately and objectively.
‘Malingering’ is a term used by many which, according to DSM-5 (V65.2) involves four criteria to be considered:
• Is the information being gathered part of a medico-legal context.
• Is the claimant suffering an ‘Antisocial Personality Disorder’ (or has antisocial traits).
• Is there a discrepancy between the self-report complaints/system and other more objective findings.
• Is there a lack of cooperation or effort?
“Her evidence of inability to drive her car due to intense fear was inconsistent with surveillance evidence showing her driving her children to /from school every day”.
As above, the concept of malingering can be confused with specific psychological disorders such as chronic pain disorder and somatoform disorders where seemingly unreliable data is motivated by unconscious and involuntary processing rather than intentional fabrication.
Inconsistencies or discrepancies in the patient’s self-reported symptoms include:-
1. Self-report history with documented history.
2. Self-reported symptoms are discrepant with known patterns of brain functioning.
3. Self-reported symptoms are discrepant with behavioural observations.
4. Self-reported symptoms are discrepant with information obtained from collateral informants.
5. Evidence of exaggerated or fabricated psychological dysfunction.
Over reliance on self-report information
Self-report information is an important aspect of any psychological evaluation. Mental health professionals often proceed on the assumption that clients will provide an honest and complete description of their symptoms. However, this sort of forthrightness cannot be taken for granted. Assessment of malingering is crucial; failure to examine patterns of dissimulation can render an assessment redundant.
Clients provide information about their truthfulness from the very start of the litigation process. Written communications, telephone conversations and face-to-face meetingsprovide invaluable information concerning a client’s motivation to be open and honest.
Truthfulness like most other behaviours is a continuum as shown below:-
Telling the truth validly and reliably
Selective truthfulness and lying
On this continuum claimants commonly display the following characteristics: -
1. Omission of key information.
2. Exaggeration of information (i.e. depth, quantity, severity) and over generalising.
3. Inconsistency of approach between two or more areas.
4. Suggestibility for producing erroneous accounts under interviewing or interrogatory conditions.
The Mental State Examination
Many expert assessors undervalue the mental state examination, mixing it with the patient’s history of presentation and account of symptoms. However, the mental state of a subject offers a plethora of objective information about an individual, which can then be compared with their subjective account.
The objective assessment of mood allows comparison with the individual’s account of their affect. Are they depressed? Do they laugh if the interview becomes light hearted? Do they only cry when discussing their depression? Is this emphatically understandable or part of crude ‘play-acting’? Are they demonstrably restricted by pain, or do the present histrionic pain behaviour. Do they use crutches/sticks or other aids appropriately. How have they been in the waiting room?
Cognitive testing (at a clinical level) can also be revealing. Can they perform normally on tests of attention and concentration whilst complaining of severely curtailed attention? Are they able to remember? If they cannot, is this in accord with the full account that they have just given? Is there evidence of exaggeration, such as with poor immediate recall or the so-called ‘Ganser questions’ (Factitious Syndrome).
Comparison of claimant history and symptoms with GP records
The expert is typically presented with several different sources of medical and occupational records. However, frequently the most useful is the GP medical record of attendance (typically computerised for more recent years). This gives the expert the opportunity to compare what the claimant has disclosed either through interview or witness statement about: a) their condition and b) their GP attendance.
One key question remains: whether the Claimant would attended their GP for diagnosis and treatment if they had a clinically significant psychological injury? Some clue to this can be found in their previous records; if they previously attended for psychological problems, there is unlikely to be a post index incident reason why they have not attended unless their condition is very mild or absent.
A formal GP chronology (typed and complete as far as possible) is essential to enable the experts on both sides to sensibly and logically, answer pertinent questions in a nonpartisan, objective manner. What does the pattern of attending indicate about:
• Pre-accident status
• Immediate post accident experience
• Diagnostic and treatment provided
• Other factors cited (related or unrelated)
• Duration of symptoms and treatment?
“His allegation of continuing high levels of pain was inconsistent with only one attendance at his GP in the 24 months since he returned to factory work”.
Despite some gender differences (male/female) with emotional expression and symptom disclosure, one would expect “on the balance of probabilities” that any individual with a significant psychological injury would attend their GP, in the first instance, for help and guidance. This comparison is therefore essential to provide information on the validity and reliability of the claimant’s circumstances.
Careful exploration, in interview, of the claimant’s decisionmaking and rationale, with regards to whether or not they sought professional support, can be particularly illuminating in relation to this issue. Consideration of the response also provides further insight into the way in which the claimant perceived, construed, evaluated and ‘managed’ their post- accident injuries.
Testing certainty via joint opinion discussion
The aim of the joint discussion is to help the court clarify levels of agreement and disagreement between two experts on opposing sides. In doing so, it encourages the testing of robustness of the evidence, in terms of its reliability and validity. It is an invaluable process which clarifies pre-accident vulnerability, pre-existing symptoms, range of diagnostic opinions, post accident duration and attribution, and prognosis.
How can reliability and validity be enhanced?
Ultimately, any ‘certainty’ of evidence depends on whether the it is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time. Findings of credibility and reliability require a comprehensive and critical examination of the evidence as a whole – not only one element to the exclusion of others.
When investigating characteristics of reliability and validity in claimant’s interviewing content and style, there are several aspects of the patient history which are addressed:
• Pre accident condition and psychosocial context.
• Index trauma and peri-traumatic context (soon after).
• Immediate short term reaction and level of disruption.
• Natural improvement.
• Prognosis and change/treatment expectations.
During this process, there is a search for the ‘best fit’opinion.
With regards to increasing objective and contemporaneous information, if all Claimants are expected to have attended their GP or equivalent at the earliest possible time postindex accident, this would provide a contemporaneous and independent record from the GP of physical or psychological injuries and causation. It seems suspicious when the trail of complaint only begins with the commencement of litigation.
It should be remembered that it is encumbent on the claimant (or his/her representatives) to “prove” the case of attributing injury to index event. However, the role of single event trauma can be over emphasised and co-existing psychosocial factors which are unrelated to the trauma may be both critical and under estimated.
It is important to place and compare the claimant’s overall ‘picture’ into the context of epidemiology, normality and what is called a ‘default mode’ or ‘real world perspective’ (14) – in plain English, what sort of reaction would be expected to be found in the general population. This must be particularly the case when dealing with adjustment reactions/disorders, or where a whole family complain of the same psychopathology.
In this context it is important to remember and apply the ‘But For’ test to decide objectively the relevance of pre-index event history. However, claimant’s may have difficulty recalling their history comprehensively, thus making the expert’s ability to apply the ‘But For’ rule difficult and consequently, less reliable.
“I am struck by the inconsistency between Mr X’s testimony in medico-legal interviews and GP record chronology. He displays pre-accident symptoms and exaggerates current severity. He over attributes symptoms to the index accident and for which there are other explanations” Judge B (Balance) Act.
The expert is explicitly placed in the role of impartial, neutral and objective assessor of evidence, as stated in the Statement of Truth, and their opinion will be subject to further scrutiny and review. The Expert is therefore driven to consider the evidence before them, and their synthesis of it, in such a way that the ‘best fit’ test must hold true for their conclusions from multiple perspectives. This will be applied in different ways in different medical specialities.
In striving to achieve this, the expert must analyse all of the information available to them in such a way that they are constantly seeking to triangulate the data and to assess the degree to which the evidence ‘hangs together’. If it does not, then this must be their next focus of enquiry and warrants comment within the body of any report produced. It follows, as part of the process of assessment, that it is incumbent upon them to state their view of the degree to which the data does fit together and the degree to which the conclusions reached are reasonable, based on consistent data (that is ideally collected from multiple sources) and within the range of expected reactions to traumatic events.
This burden of responsibility will, rightly, continue to propel experts to pursue the ‘holy grail of certainty’. In so doing, the nature and process of ‘best practice’ in assessment will continue to develop and evolve.
Current research into evidential reliability
I am currently investigating in specialty-specific detail what variables are most prone to unreliability in the two clinical areas of psychology/psychiatry and orthopaedics. Experts in these two fields are being asked to provide information on which aspects of their opinion are most prone to variability, either within their own practice or between them and other experts (e.g. when joint opinions are prepared).
Reviewing Medical Notes
Access to a claimant’s medical records from their GP/Family practitioner is one of several major and essential sources of information used in formulating an expert opinion for civil litigation purposes alongside claimant self-report, psychometric testing, robust history taking and other sources of information (family or occupational).
How GP data helps opinion formulation
Expert opinion formation is enhanced by:
1 Legible records, preferably computerised.
2 Clarity of symptom type, site, frequency, intensity, duration, onset and course over time
3 Specificity of intervention (medical and psychological)
4 Motivational factors, especially in relation to employment continuity
5. Pre accident annual frequency rates of GP attendance
Given that much psychological and medical opinion is based initially upon the account of the claimant, one way of checking their credibility is by comparing their account of pre-accident and post-accident injuries with the medical attendances recorded. Experts should understand the various degrees of attendance inconsistencies when providing an opinion.
A careful analysis of GP records will be followed by a set of conclusions about the significance, presence of absence of GP entries, both before and after an index event. The type of conclusion drawn will include:
1. Evidence of disorder reinforced by accident-related GP attendance, diagnosis and treatment, plus duration of difficulties
2. Evidence of other life events and non accident-related symptoms reinforced by GP attendance that could explain reactions to index event or indicate exacerbation of index event difficulties.
3. Evidence of pre-existing symptoms in the 12 months immediately prior to the index event that could indicate the possibility of aggravation of already existing symptoms.
4. Evidence of earlier psychological symptoms (more than a year prior to the index accident) indicative of vulnerability to later symptoms when stressed, or likely occurrence of later symptoms irrespective of further events.
In general, evidence of inconsistencies between the claimant’s account and the medical records needs to be considered in forming an opinion on the claimant’s credibility.
One specific point on forensic history, if a person denies a forensic or criminal history that is present in the GP records, this is evidence of untruthfulness. Also GP records are not totally accurate records of a criminal history, and GPs will sometimes omit embarrassing forensic information as not medically relevant.
Categorising GP entries
GP entries can be sub-categorised as follows (Fig XXXVI):
c. “Accident” Specific
i. Previous traffic accident symptom description
ii. Diagnosis by GP
iii. Treatment by GP
d. Symptom Specific
e. Additional (one year pre-index accident) information
i. Adverse life events
ii. Medical disorders
f. Personality or coping style
g. Forensic Data
2 Post Accident – Accident-Specific
a. First Month
i. A/E Hospital attendance; GP description of RTA; Stress; Mood disturbance (including nightmares), situational anxiety
ii. Diagnosis by GP
iii. Treatment by GP (reassurance, psychotropic medication; behavioural advice, referral for counselling or CBT therapy).
b. Subsequent Months
i. Further, ongoing symptom description
3 Non-Accident Specific
a. First Month
b. Subsequent months
i. Symptom description (stress, mood disturbance, anxiety)
ii. Diagnosis by GP
iv. Adverse life events noted
v. Medical disorders
Why do claimants visit their GP?
Individuals typically visit their GP in the immediate aftermath of a significant accident (i.e. within the first 48 hours) to establish any physical injuries and need for appropriate treatment at primary or secondary care levels. They may also express their psychological distress, which the GP may or may not note in his computerised attendance note. At this stage sympathetic listening and reassurance with a review, if necessary, in one to four weeks are the appropriate interventions. Over the next four to 12 weeks, the individual will attend or not attend. These two behaviours need careful interpretation in the medico-legal context as they can occur for several significantly different reasons, some consistent with valid psychological distress, some not.
At face value repeated attendance for psychological symptoms (e.g. sleep disturbance, mood variability, anxiety) requiring medication and/or psychological therapy and associated occupational dysfunction requiring certification are consistent with a level of disability. Causation will usually be noted by the GP (e.g. accident, other adverse events related or unrelated to the accident). Most GPs are skilled biographers and will note their patient’s account of other adverse events and where the patient has drawn no link between other events and the index accident this speaks for itself, despite when claimants subsequently recall to the contrary. Claimants are typically more accessible to expressing mood and sleep symptoms (depression) to their family doctor rather than travel-related anxiety and nervousness. The former has historically been more “medicalised” and, in the absence of other rapid psychological interventions, treated with medication, whereas the latter travel anxiety is thought to be “non-medical” and less the province of the overstretched GP.
Again, at face value, non-attendance post-accident is consistent with low level of disability post-accident. This is especially valid in excluding serious depressive illness and Posttraumatic Stress Disorder (and its related condition, Acute Stress Disorder). By definition, significant occupational dysfunction will have required certification and hence lack of attendance indicates reasonable work adjustment. However, non-attendance does not preclude any of the following: mild, variable depression; phobic travel anxiety; mild adjustment reaction; and mild work difficulties.
i) Severity and GP attendance
It is often assumed that there is a linear relationship between symptom severity and GP attendance. Thus a lack of GP attendance is taken to denote mild symptoms eve though a claimant may report symptoms that are severe and disabling. There are multiple factors that disrupt the relationship between symptom severity and GP attendance. Specifically, there are many reasons other than a claimant having mild symptoms that account for a lack of GP consultation post-accident. These include: having a poorrelationship with one’s GP, having previous negative or dismissive consultations with the GP, a belief that a GP is not psychologically minded and therefore will have little interest in psychological symptoms, an expectation that a GP’s response to report of psychological symptoms will be to prescribe psychotropic medication, shame and embarrassment about reporting psychological symptoms (particularly relevant in men), not wishing to have psychological symptoms detailed in one’s medical notes, a belief that one’s symptoms are trivial relative to the GP’s other patients and having an independent coping style such that going to one’s GP takes place only as an absolute last resort, reinforced by difficulty getting a GP appointment and also cultural issues. The above reasons explain why, in many cases, individuals do not consult with their GP and live instead with severe and enduring accident-related symptoms, sometimes years post-accident. Thus although an absence of GP attendance can be viewed as weakening a claimant’s case, there are many reasons why this is not necessarily so.
j) Delayed attendance post-accident
Why do claimants delay informing their GP of their psychological symptoms until several months post-accident? The various possible interpretations include:
• Initial precedence of physical pain over psychological distress
• Later distress as reaction to unremitting pain and disappointment with lack of recovery
• Genuine “delayed” psychological reaction
• Litigation factors e.g. discussion with medico-legal experts; waiting for lawyer to arrange medical assessment
k) Interpretation of GP attendance notes
With the passage of time, an individual’s recall of what they said to the GP many months or years previously becomes less reliable. Claimants are psychologically predisposed (often unconsciously) to the following assumptions: assuming attendance occurred; assuming it occurred “soon after” the index event; and/or assuming no other events or stressors had occurred. These may or may not concur with what the GP has actually recorded. Concurrence or inconsistencies help clarify ambiguity in medico-legal terms.
l) When medical notes say “PTSD”
A common finding in psychological reports is for GP and therapy notes to diagnose PTSD but the expert does not. This apparent anomaly can be explained by a tendency inclinical settings to focus on symptom presentation with much less consideration of the traumatic event itself. Thus if an individual presents with the trauma symptoms of intrusive thoughts, nightmares, dissociative flashbacks, avoidance behaviours and mood disturbance, a diagnosis of PTSD is frequently made regardless of the nature of the triggering event. In contrast, the medico-legal expert pays greater attention to the nature of the trauma itself. Criterion A of a Posttraumatic Stress Disorder, as defined in DSMIV- TR, states that the triggering event involves, ‘experiencing, witnessing or being confronted by actual or threatened death or serious injury, or at threat to physical integrity of others. Thus it is factual. If this criterion is not met, PTSD should not be diagnosed, irrespective of all the other PTSD criteria being met. Symptoms arising from accidents that are relatively minor therefore, or which posed a low risk of serious injury being sustained, should not be diagnosed as PTSD. Even where serious accidents have been experienced, a diagnosis of PTSD in GP records may be invalid if it is written in the notes within the first month of the accident as PTSD cannot be diagnosed until the symptoms have persisted for over one month.
Typically, a more reliable descriptive phrase is that of “Acute Stress”, rather than the full diagnostic label.
Psychological symptoms after road traffic accidents are difficult to communicate in brief notations. Posttraumatic Stress Disorder (PTSD) is sometimes used generically and incorrectly, when it is a specific and complex disorder. Indeed, in psychiatry, there is a danger of PTSD being devalued by its over-use. In addition to these distinctions being important for a medico-legal context, they are also important for treatment recommendations.
Pre accident depression
An individual who has experienced and been treated for three discrete episodes of clinical depression is at significant risk of having a fourth. The occurrence of a fourth episode following an index accident will raise a range of opinions. A de-novo episode precipitated by the index event
1. An episode that, although accelerated by the event, was likely to occur at some time anyway
2. An episode that, but for the index event, probably would have occurred anyway (being the fourth of a series of depressive episodes).
This discussion applies equally to other psychological states such as anxiety.
The flow of attendance to a GP may be consistent with a tendency to:
• “Somatise” distress into physical symptoms
• Over-emphasise, magnify or exaggerate pain
• Anxious/avoidant responses to stressful situations
• Negative or angry responses to conflictual situations
The concept of the “egg shell skull” is widely used to decide whether or not the psychological condition would have occurred, taking into account the claimant’s personality or coping-style. Again, rigorous analysis of what is contained in the GP attendance notes, both immediately prior to and immediately after the index event, allows an opinion as to whether post-accident symptoms are accident-related or wholly unrelated to the index event.
Technical problems with GP records
1. Illegibility of handwritten notes
2. Non-sequential notes
3. Notes on both sides of sheets and/or upside down, making frequency and sequence difficult to assess
4. Miniaturising or magnifying of poor quality records
5. Presentation on dark pages
6. Use of short hand
7. Non-dated notes
Most GP records and correspondence including that of treating clinicians are there contemporaneously for objective clinical purposes, not for litigation purposes. Theircontemporaneity is far less subject to the intrinsic unreliability of recall in an interview months or years after an accident, hence their significant utility to the expert and the court.
A robust psychological opinion requires careful and rigorous analysis of GP records, whether the purpose/context be preparation of an assessment report, a joint opinion discussion or a court hearing attendance. In some cases, no GP records will be available. However, where these are in existence and available, the lawyer is best advised to obtain a legible chronology of GP attendance to clarify with the claimant what occurred and to highlight to the expert the “facts” of pre-litigation and post-litigation attendance. The expert can make a significant contribution to the legal process by carefully considering the meaning of different GP attendance records, thus reducing unnecessary ambiguity. The GP meanwhile soldiers on and can make an invaluable contribution with accurate records keeping and clinical observation untainted by lawyer or expert!
Although GP’s are not trained in either psychology or psychiatry and therefore cannot be expected to obtain the detailed types of data that one would typically obtain from a psychologist or a psychiatrist, the GP’s timely and reliable records are invaluable to the court’s deliberations.
Although GP’s are not trained in either psychology or psychiatry and therefore cannot be expected to obtain the detailed types of data that one would typically obtain from a psychologist or a psychiatrist, the GP’s timely and reliable records are invaluable to the court’s deliberations.
Specific medical-legal issues in child assessment
Six issues are worthy of mention for the lawyer considering the need for a psychological assessment of a child who has recently been involved in an accident.
1. A psychological assessment should be thorough and comprehensive using a structured approach which results in a “multi-axial” summary which explicitly cites:
• A diagnosis (if present) using DSM-5 or ICD 10 categories;
• Predisposing or pre-existing psychological or social factors;
• Attribution of symptoms to index accident;
• Prognosis and need for treatment.
2. This assessment should be carried out in a manner which reassures the child and parent(s) and effectively manages any distress inherent in the process of revisiting accidentrelated experiences. The process from initial correspondence, to interview procedure and final briefing of family should be seen by the family as helpful and non-intrusive.
3. Instructions whether they originate from the claimant’s or defendant’s solicitor or joint instructions should be clearly explained to the parents by both the instructing solicitor and then the instructed psychologist to allay any fears of the interview process itself being unnerving for the child (or parent).
4. The process from instruction of expert to receipt of report should be short and typically of the order of six to eight weeks. This is not only to meet demanding legal timescales but also to keep family anxieties to a minimum and to provide advice, if and where appropriate, as soon as possible.
5. In child cases, malingering, total invention of symptoms and disability for obvious gain, is uncommon. Inconsistency of data is typically related to parental anxiety and lack of interviewer clarity. Magnification is common and, again, typically attributable to parental anxiety and can be modified sensitively but rapidly by careful questioning and data collection.
6. Causation and attribution in child assessment must be in the basis of the available evidence whether clinical or medical record based. The experienced clinician will be aware of and, at times, make explicit the “range of possible opinions” before stating the final (or provisional) opinion which “best fits” the available facts.
Children, like adults, experience the stress and trauma of being in a traumatic event such as a road traffic accident. As such, the assessment of such stress should be reliable,
thorough and multi method. In undertaking assessment of children, the clinician should make the process as non-threatening as possible for both child and parent and should provide them with reassurance and where appropriate, practical advice on their continuing coping strategies and/or new coping strategies. Finally, the overall assessment should address the medical-legal issue of reliability, truthfulness, causation and attribution in ways which stand scrutiny and debate and which are independent and assist the court in its final decision.
Managing Uncertainty in Experts:
What are the key issues?
Conducting a medico-legal interview and preparing a comprehensive report for the court, consistent with CPR rules and culture, involves a rigorous approach to data collection. Experts are aware of the importance of working with evidential complexity and differential sources of information (claimant self report; medical records; changing course of symptoms over time). As a result of this challenging task, experts in civil proceedings have to develop their own notions of what ‘certainty’ means in theory and practice in this context.
The concept of ‘certainty’
The court need to demonstrate that expert opinion rests upon a properly laid evidential foundation (6) which can withstand cross examination to ‘discover the truth’. The use of a second expert (defendant) and the Joint Opinion process is used to buttress, impugn or confirm the legitimacy of an opinion. Phrases typically used to represent levels of evidential certainty include: ‘on the balance of probability’, or ‘reasonable degree of certainty’.
The concept of ‘certainty’ in expert deliberations is explored, in order to help experts clarify the quality of their opinion with ‘true conviction as opposed to vaguely understood incantations’ (7).
In my experience undertaking extensive medico legal assessments in Personal Injury clinics, the typical areas of their medico-legal work which caused most uncertainty include both cognitive processes (e.g. logical, illogical, confusion when faced with inconsistent data) and emotional processes (e.g. unhappy and anxious) about inability to be clear about the task in hand (e.g. diagnosis). In my view, the top 13 causes of uncertainty were:
1. Inconsistency between sources of data (e.g. self report/GP records)
7. Unusual symptoms reported (inconsistent with widely understood clusters of symptoms)
8. Magnified or exaggerated symptom self-report.
9. Borderline symptoms (clinically significant/diagnostic or not)
10. Differential disruption (social/psychological but not occupational disruption)
11. Lack of confirmatory GP attendance history
12. Differential diagnosis between clinicians
13. Interpreting unreliable information from claimants
14. Understanding the interaction between pain and mood
15. Proportionality and multiple causality (e.g. two accidents)
16. Effects of litigation-maintaining symptoms
17. Interpreting poor response to therapy
18. Differentiating between different diagnosis
I intend to develop a typology of areas of uncertainty in due course but a preliminary model consistent with the above views is shown below:
• Self-report unreliability
• Between-source inconsistency
Developing or changing my opinion?
In everyday decision-making, individuals tend to initially gather relevant information and formulate an opinion based on that information. They then are open to tmodifying this opinion when additional information is available.
In litigation, the same situation prevails although with some caveats.
In his blog article ‘The Inconsistency of experts and the failure to apply the Legal Tests’, Giles Eyre, barrister, quotes a recent High Court Case (Pullen v Basildon and Thurrock University Hospitals (8)) EWHC 3134 where an expert who changes his or her opinion is at risk of being found an unreliable expert. He states that a change in opinion needs rational justification, whether it occurs after own side formal questions, conference with counsel or CPR 35-6 questions from the other side. The judge in this case, where one expert altered his view, noted that the court can accommodate a frank change of opinion as long as this is rational, credible and logical and occurs at the earliest opportunity. In this circumstance, a changed opinion can carry weight in court (Eyre, 2015). However there are dangers! The case of Jones v Kaney (2011) UKSC 13 involved a psychologist (Kaney) acting as an expert witness in a case of a road traffic victim claiming damages for physical and psychological injuries. Kaney diagnosed PTSD, but during a joint statement discussion in November 2005 she conceded ground significantly both in terms of diagnosis severity and also reliability. This resulted in a pre-trial settlement at a lower than expected quantum. In 2009, the claimant (Jones) brought a claim for damages for professional negligence against Kaney for reduced quantum settlement. The supreme court deliberated long and hard about the ‘immunity for experts’ issue. This case resulted in expert witnesses losing their immunity from being sued in negligence if their performance fell well below the standard expected of an expert, their duties and obligations. The supreme court’s conclusions were a landmark ruling, and lead to further professionalising of the expert witness indemnity. It raised the possibility that experts might be discouraged from the expert witness process for fear of facing litigation. The nub of the issue is how and when should an expert reissue, amend or change substantially their opinion. In everyday life, we as individuals may change our opinion when any of the following conditions occur:
1. We learn new information.
2. We hear alternative points of view about the same shared information or new information.
3. We are persuaded by the strength/emotional resilience or forcefulness of an opposing, different opinion.
4. We feel uncertain of the merits or thoroughness of our own opinion.
Acting as an expert witness is different to ‘everyday life’! Firstly, an expert analyses available evidence with the proviso about missing information or the possibility that his/her opinion might change if new or additional information provided. In this regard it is prudent for experts to clearly document any future information which might require their opinion to be altered such as ‘my opinion is based on the premise/supposition that Mr X leg injury was the consequence of the fall at work, if the court were to have reason to bring this into doubt, my opinion would require amendment’. Secondly, if and when new or additional information is provided, the expert retains the right to consider it and, if appropriate, alter his opinion to accommodate the new information. It is helpful to the court if experts are clear in such circumstances as to the reasons for their altered opinion… such as ‘in light of video evidence / recent research it is my opinion there is credible reason to alter my opinion to include this information. Thirdly, if the expert is ordered to take part in a joint statement discussion, the aim is to compare and contrast his evidence with that of his opposite number and advise the court of areas of agreement and disagreement, and reasons for the disagreement. It is not a ‘battle of wills’ between the experts with the aim of one expert ‘brow beating’ the other. Emotional forcefulness or, at times, belligerence by one expert does not have a place in this joint opinion process and should be ignored and/or withstood. In such circumstances it is prudent for the expert to take a leadership on the drafting of the joint report and ensure that the basis of the disagreement is clearly articulated, however, it is noted that the introduction of liability for experts may be detrimental to experts being willing to engage in the litigation arena, or worse, to belligerently defend their opinion through fear of litigation. It is likely that ensuring clarity in communicating the experts position is key inmitigating these concerns to ensure the validity of opinion offered. (9) (10).
Here we see the tension between the initial search for certainty and subsequent need to manage uncertainty.
Researching Intolerance of Uncertainty
In addition to eliciting qualitative views from experts about their dilemmas in medico-legal work, I plan to assess with my colleague Katie Newns quantitatively how experts tolerate uncertainty. To begin with, we want to explore whether experts vary in terms of their personality and general intolerance of uncertainty, before then addressing the same variable specifically in their medico-legal practice.
A short form scale based on the Intolerance of Uncertainty scale (11) was developed by Carleton (12) which measures responses to uncertainty, ambiguous situations and thefuture. The 12 items of the short form are each rated on a 5-point Likert Scale ranging from 1 (not at all characteristic of me) to 5 (entirely characteristic of me). For example, statements included:
1. Unforeseen events upset me greatly
2. It frustrates me not having all the information I need
We have adapted this scale (9) to specifically tease out views on uncertainty when undertaking medico-legal work. For example, statements included: -
1. Uncertainty keeps me from having confidence in my opinion giving
2. I dislike being take by surprise e.g. new information, part 35 questions
We anticipate sampling a group of 25 – 30 experts who regularly undertake medico-legal assessments and aim to report on results in approximately 6 month’s time.
Weighing up evidence and coping with uncertainty
There is a broad consensus amongst lawyers and experts that experts should use the scientific method to formulate and test alternative hypotheses, using evidence from multiple sources to seek collaborative or disconfirming evidence (13). Scientific or logical reasoning can identify limitations in evidence, using consistency as the basis for reasoning from evidence to opinion.
The problem with aiming for logical answers is that inconsistency will occur! How should experts deal with case-specific evidence that is inconsistent? Important principles (Milchman, 2015) are:
3. The meaning of inconsistent evidence, no matter how little there is, may diminish the weight of the consistent evidence, no matter how much there is.
4. An expert opinion has the highest level of validity:
a. When it accounts for consistent and inconsistent evidence.
b. When most of the evidence supports the opinion, no evidence contradicts it, and inconsistent evidence can be explained so that it no longer reasonably calls it into question.
This ‘Step-Down’ analysis attempts to assess internal validity underpinning an expert’s opinion and considers the relationship between consistent, inconsistent, and contradictory case-specific evidence.
Crucially, it counteracts claims that expert opinions are based on intuition, are inscrutable, and not subject to rational analysis. As such it makes expert reasoning more transparent (14).
This chapter sets the scene for qualitative and quantitative research we plan for 2016 and beyond. Experts have the skills to manage and tolerate the uncertainty and eitherm use it, like a therapist, to identify problems or inconsistencies in what they are being told or as a sign that additional information or analysis is required. It is anticipated that this research will also have clinical and legal training and CPD implications, for experts, lawyers and barristers, as well as on the postgraduate courses for all three.
Chapter 7 References:
1. Antony MM & Barlow DH (2002) Handbook of assessment and treatment planning for psychological disorders. Guilford. New York.
2. Gough HG (1957) California psychological inventory manual. Consulting Psychologists Press. California.
3. Gudjonnsen GH (1997) The Gudjonsson suggestibility scales manual. London, UK: Psychology Press.
4. Murray AL & Jamieson M (2011) A tangled web – credibility in personal injury cases. CDL. Vancouver Canada.
5. Law Commission (2011) Annual Report 2011-12 HMSO. June.
6. Drogin EY, Commons ML, Gutheil TG, Meyer DJ & Norris DM (2012) Certainty & expert mental health opinions in legal proceedings. Int. J. Law. Psychiatry 35(5-6), 348-553.
7. Drogin EY (2015) Special Issue on New Challenges in Psychology & Law. Int. J. Law & Psychiatry, 42-43. 1-188.
8. Eyre G (2015) Inconsistency of experts and failure to apply the Legal Tests. www.legal-minder.org.
9. Koch HCH & Newns K (2016) Intolerance of uncertainty scale: modification for assessing experts. (Research ongoing).
10. Koch HCH & Thorns T (2016) Change your opinion casually at your peril. Legal Mind Case Commentary. Personal Injury Brief Update Law Journal. July.
11. Freeston M, Rhéaume J, Letarte H, Dugas MJ & Ladouceur R (1994). Why do people worry? Personality & Individual Differences, 17, 791-802.
12. Carleton RN, Norton MA & Asmundson, GJG (2007). Fearing the unknown: A short version of the intolerance of uncertainty scale. Journal of Anxiety Disorders, 21, 105-117.
13. Gill D (2007) Hughes’ outline of modern psychiatry. Wiley.
14. Milchman (2015) Weighing evidence in psychological experts opinion. Paper presented to IALMH conference. Vienna.
15. Vrij A (2000) Detecting Lies and Deceit. Wiley, Chichester The above is a chapter from LEGAL MIND.