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Psych versus Psych: A Diagnostic Dispute and the Implications for Expert Witnesses in Family Proceedings

William Tautz, barrister of Tooks Chambers, examines the fundamental challenge to psychiatric diagnosis recently announced by the British Psychological Association and explores its implications for the instruction and cross-examination of expert witnesses in a post-streamlined PLO world.

William Tautz, barrister, Tooks Chambers

The revolution in public law children proceedings, and in particular the instruction of expert witnesses, continues apace.  The revised rules in Part 25 of the Family Procedure Rules 2010 are being vigorously applied, with judges taking up the President's suggestion and demanding 'three good reasons' for the necessity of instructing an expert witness.  The interim Revised Public Law Outline is to come into effect on 1st July 2013.   Now the Ministry of Justice is consulting on standards for expert witnesses.

Onto this changing  scene falls a small, quiet hand grenade from quite a different battle.  The British Psychological Association's Division of Clinical Psychology (DCP) has issued a Position Statement calling for a paradigm shift in relation to psychiatric diagnoses.  While recognising that human biology has a role in "in mediating and enabling all forms of human experience, behaviour and distress", it challenges the 'disease model' for experiences and behaviour where the evidence points not to biological causes but to underlying social and psychological factors.  The Statement argues that:

"functional psychiatric diagnoses such as schizophrenia, bipolar disorder, personality disorder, attention deficit hyperactivity disorder, conduct disorders and so on, due to their limited reliability and questionable validity, provide a flawed basis for evidence-based practice, research, intervention guidelines and the various administrative and non-clinical uses of diagnosis."

One administrative, non-clinical use of diagnosis is in law.  Psychiatric evidence can be used in most areas of law.  In mental health tribunals, the Court of Protection and the family courts, such evidence is often central.  This article will examine the implications of this dispute between the professions.

The DCP's Statement appears to have been carefully timed, coming as it did just before the publication of the American Psychiatric Association's (APA's) latest version of its Diagnostic and Statistical Manual, DSM5.  British psychiatrists officially employ the diagnostic approach set out in Chapter 5 of the World Health Organisation's current International Classification of Diseases, ICD10, but the DSM5 will be hugely influential, not least in the preparation of ICD11, which is due out in 2015.

Differences between classification systems and the periodic chopping and changing of diagnostic categories and criteria within the respective systems fuel  the DCP's argument that translating thoughts, feelings and behaviours into the medical lexicon of 'symptoms' and medical or psychiatric 'illness' is flawed.

A prominent example is personality disorder.  For many years there was disagreement among psychiatrists about whether personality disorder was even treatable.  Research has shown that it is, but the definition and categorization of personality disorder is still problematic.  DSM5 includes an alternative model 'for further study' in which 'paranoid', 'schizoid', 'histrionic', and 'dependent' are eliminated as categories of personality disorder but retained as traits.  The APA, as reported in Psychiatric News says:

"The alternative model is intended to move toward a way of diagnosing disorders that fits the patient who comes to the clinician's office with a variety of presentations, rather than fitting the individual into a preconceived categorical scheme."

This sounds like a positive step, but a statement that an individual suffers from personality disorder can still be presented as an objective fact rather than a subjective interpretation of behaviour and self-report.  It may also lead unnecessarily to the individual suffering stigmatization and discrimination.  Psychologists might argue that the validity and reliability of the diagnostic category itself is open to question.

DSM5 eliminates several sub-types of schizophrenia, including paranoid schizophrenia.  In relation to substance misuse, the separate diagnosis of substance abuse and substance dependence are done away with and replaced with a catch-all category of substance use disorder (one for each substance).  There is a new diagnosis of gambling disorder.  In Section III of the manual, where emerging models and conditions are set out to aid clinicians and provide a basis for research, new proposed diagnoses include internet gaming disorder and caffeine use disorder.

In relation to children, another headline change introduced by DSM5 is the elimination of four separate types of autism, including Asperger's disorder and pervasive developmental disorder.  They are replaced with the single diagnostic category of Autistic Spectrum Disorder with different levels of severity in relation to the two key symptoms (deficits in social communication and interaction and restricted, repetitive behaviours or interests).  The research evidence about the causes of autism – whether biological/genetic, environmental or a combination of both – is very much evolving.  A diagnosis is often key to unlocking the services and support that a child needs.

More controversial, however, are diagnoses such as conduct disorders and ADHD, where concerns about unnecessary medicalisation, mis-diagnosis and overtreatment are widespread.   The courts, the media and even the public are generally accepting of the medical model of mental 'health', but the application of these particular diagnoses are subject to public scepticism in line with the DCP Statement.

In addition to questions of validity and reliability and the negative impact on individuals who are labelled with this or that diagnosis, the DCP Statement highlights the over-reliance on medication that follows from medicalisation of thoughts and behaviour.  It also raises the ethnocentric bias of the psychiatric paradigm:

"Psychiatric diagnosis is embedded in a Western worldview. As such, there is evidence that it is discriminatory to a diverse range of groups and neglectful of areas such as ethnicity, sexuality, gender, class, spirituality and culture."

Challenges to the medical model of mental health are not new – they have even come from within psychiatry itself.  What is new is the willingness of a respected professional body such as the British Psychological Association to make so clear and public a statement as a basis for training, research and dialogue and debate with other professions.  Is it the beginning of the end for the primacy of the psychiatric model?  Hardly.  The DCP is no doubt seeking an evolution – and not a revolution – of views.

But what are the implications for the revolution that is taking place in the family courts?  Cynics might think the dispute provides ammunition to those wishing to reduce the use of expert witnesses in care proceedings even further:  if psychologists and psychiatrists cannot even agree on a paradigm for what they are addressing, how can they help the courts?  Certainly, it is pertinent to ask whether an independent diagnosis is necessary when disturbances of thought and behaviour which affect parenting are clearly evidenced.

In reality, experts will continue to be instructed in suitable cases, but the likelihood is that, for instance, a choice will have to be made about instructing either a psychiatrist or a psychologist to assess a parent rather than instructing both as has been commonplace.  The requirements under the rules for 'necessity' Family Procedure Rules 2010, r25.1 are already pressing representatives to think very carefully about the type of expert required and the specific expertise needed in reference to the issues to be addressed.

It should be noted that not all clinical psychologists, even members of the British Psychiatric Association, will agree with the DCP Statement, just as not all psychiatrists feel bound to stick slavishly to the ICD10.  In practice, most psychologists and psychiatrists acting as witnesses are scrupulously respectful of each other's professional territory.  In this writer's experience, only a few psychologists/psychotherapists could be induced in oral evidence to question the medical model which a parent sought to challenge (and mostly the treating clinician who was called to give evidence).

In the majority of care cases involving parents with mental health problems, the dispute between psychologists and psychiatrists about medicalisation and diagnosis will make little difference.  This may be because the parent in question also has other difficulties, such as drug misuse or issues relating to domestic violence.  In most cases, the parent's behaviour, what he or she does and says, will be much more important than the particular diagnosis:  classifying someone as having personality disorder is not as important in terms of his ability to parent a child as, say, his tendency to be disruptive and aggressive towards teachers, in public, etc.

There will be a small number of cases, when representing parents, where it will be in the client's interests to seek to instruct a psychologist who is prepared to stand up and speak in opposition to the standard psychiatric approach.  The DCP Statement may make that more feasible.  An example of such a case would be a parent – or indeed an individual in the Court of Protection – who does not accept their psychiatric diagnoses and is therefore said to lack insight or who has a well-reasoned resistance to medication.  Another example might be where there are issues of behaviour and belief in relation to an individual's ethnicity, culture or religion and which the individual does not accept are part of his 'mental health problem'.

In the Court of Protection (CoP), it is important to remember that capacity is decision-specific and not person-specific; see PC and Another v City of York Council [2013] EWCA Civ 478.  An individual said to be lacking capacity through mental 'illness' might well seek to challenge a psychiatric opinion about capacity or best interests.  The CoP requirements in relation to instructing experts were long ago pitched at a similar level to those seen in the family courts, though the rules still restrict such evidence to 'what is reasonably required' rather than what is 'necessary' (see Court of Protection Rules 2007, Part 15).  Watch this space.

There will be no revolution in perceptions and interpretation of mental 'health', but the DCP Statement provides a reality check to the normally unchallenged world of psychiatric diagnosis.  Although the impact on the instruction of expert witnesses may be limited, the Statement certainly offers fertile ground for cross-examining psychiatrists and psychologists when they give evidence.  Knowledge and understanding of potential differences of view between the two professions may also influence letters of instruction and written questions to experts.

According to the President of the Family Division (in his second View from the President's Chambers), in future the first hearing in care proceedings is going to be, in effect, the case management conference.  This means that solicitors must be very quick on their feet to identify the need for an expert and gather all the details needed to persuade the court that such an instruction is necessary.  Will there be time?  Will a solicitor representing parents be able to get his or her hands on the local authority evidence, get clear instructions from a client who may be suffering with a number of difficulties, pinpoint a suitable expert and get all the relevant details, and then draft a letter of instruction, all by day 12 of the proceedings?

The significance of nuances, such as whether an individual disputes a psychiatric diagnosis, may not be readily apparent at the outset.  Still, we are assured that the court's rigorous application of the 26-week timescale for proceedings will be relaxed in 'rare' and 'exceptional' cases (per Baker, J in Devon County Council v EB & Ors [2013] EWHC 968 (Fam)).  One takes on trust that fairness to parents, who risk the permanent removal and possible adoption of their children, will never be overlooked or superseded in these revolutionary days.   The road ahead looks straight, but it is unlikely to be smooth.