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Psychological Assessments: a brief guide to choosing a psychological expert

Sophie Crampton, barrister of 4 Brick Court, offers guidance on when to instruct a psychologist and how to choose a suitable one for your case.

Sophie Crampton, barrister 4 Brick Court.


The mental health of one or more parties is a key issue that often arises in family proceedings, particularly care proceedings. However, even if all parties agree that a mental health expert is necessary, agreeing on the right expert, whether it is a question of psychiatrist vs psychologist or even one type of psychologist versus another, is often a bone of contention. This difficulty seems in part to stem from misunderstandings surrounding the roles and abilities of various experts. Thus, the aim of this article is to bring clarity to this issue and provide, albeit brief, guidance on when a psychologist can be instructed and how to determine which psychologist should be instructed when choosing from a number of unknown experts.

This article was prepared partly through my own research but also with substantial assistance from Dr Ruhina Ladha, a Clinical Psychologist, who was able to provide her guidance based on her own experiences of clinical practice. Additionally, guidance has been prepared jointly by the British Psychological Society and the Family Justice Council entitled Psychologists as expert witnesses in the Family Courts in England and Wales: Standards, competencies and expectation (referred to as 'the psychologists as expert witnesses guidance' within this article).

Though this article will focus on psychologists, general guidance on giving expert testimony has been prepared by the Royal College of Psychiatrists in 2015, entitled Responsibilities of psychiatrists who provide expert opinion to courts and tribunals. This guidance provides useful information about the responsibilities and ethical considerations for psychiatrists giving expert evidence.


Psychologist vs psychiatrist


For a formal diagnosis of a mental health condition, psychiatrists are usually the most appropriate expert. However, psychologists, specifically Clinical or Educational psychologists, are able to formally diagnose learning disability and specific types of learning difficulties. In children, they can also diagnose Attention Deficit Hyperactivity Disorder (ADHD) and Autism Spectrum Disorder (ASD). In relation to ASD, whoever is undertaking the diagnosis should be ADOS (Autism Diagnostic Observation Schedule) trained, as this allows them to carry out the communication, social interaction and play observation assessment that is required for diagnosis. ADI-R (Autism Diagnostic Inventory-Revised) qualifications are also useful but not as essential.

While an individual psychologist can diagnose ASD, best practice is for this to be diagnosed by a multi-disciplinary team. A multi-disciplinary assessment may still be required before the child can access support through a particular service, though any psychologist's report obtained can be released to the service to help expedite this process. Psychologists can also say whether or not a person's symptoms are consistent with a particular mental health diagnosis, which may be sufficient depending on the facts of a particular case.

For an assessment of a parent's day to day functioning, their level of insight or their ability, from a psychological point of view, to understand and meet their children's emotional needs, a psychologist will be an appropriate expert. Clinical Psychologists in particular will be able to provide a holistic explanation of a person's current difficulties and patterns of behaviour and what factors precipitate and perpetuate them. They can then go on to explore the impact of these difficulties on parenting.

Similarly, when looking at whether a child's behaviour is a result, at least in part, of the parenting they have experienced, this can be done by a psychologist. In some cases, previous CAMHS assessments or similar mental health assessments would be required first, in order to rule out other causes of their behaviour such as neurodevelopmental disorders.

Finally, together and apart assessments can be undertaken by psychologists rather than social workers, particularly in situations where one or more siblings has a neurodevelopmental disorder or behavioural problems. 

In terms of treatment, where the appropriate treatment is likely to be medication, then the most appropriate expert is a psychiatrist. However, psychiatrists will, in most cases, have limited experience of psychological treatments and therefore, the most appropriate expert to comment on these is a psychologist. Likely treatment will depend on the individual, as there are a number of mental health conditions that can be treated with either medication or psychological intervention or both. Therefore, this is not something legal professionals could or should try to predict when choosing an expert. However, it is useful to bear in mind when selecting an expert that psychologists would not, as a rule, comment on treatment with psychiatric medication and psychiatrists are often not able to comprehensively comment on psychological treatment.


Choosing an expert psychologist

Unlike the term psychiatrist, the term 'psychologist' is not a protected title and theoretically can be used by anyone regardless of their level of training and qualifications. There are certain titles (e.g. Clinical Psychologist or Forensic Psychologist) that are protected by the Health & Care Professionals Council (HCPC) and can only be used by professionals registered with them. If a psychologist is using one of these titles, this will give you an indication of their qualifications/professional status. Any psychologist using one of these terms will be registered with the HCPC (and often the British Psychological Society (BPS)) and can be checked on their website.

It is of note that the term Child Psychologist is not a protected term and can be used by anyone regardless of qualification and experience, so caution should be exercised in instructing anyone with this label.

Sections 3 to 5 of the psychologists as expert witnesses guidance provides further information in relation to the regulation of psychologists, their code of conduct and the competencies expected. Appendix 2 to this guidance provides a detailed description of each type of psychologist (Clinical, Forensic, Educational etc), their typically day to day activities and their career pathways.

Psychology, like law, covers a broad range of roles and disciplines and each expert psychologist will have their own particular areas of expertise which may be highly specialist or niche. Therefore, when considering the CV of an expert psychologist, their current and previous job roles or specialist areas will need careful scrutiny when deciding if they are right for a particular case.

For example, Clinical Psychologists are most often instructed in family proceedings. However, the precise Clinical Psychologist required will depend on whether they are being instructed to assess an adult or a child, what is being assessed (e.g. mental health, effect of chronic illness, attachment, risk etc) and the client's history or background (e.g. whether they have previous offending behaviour or have been a victim of sexual abuse or whether they need an assessor sensitive to their particular culture or who speaks their language). The BPS also provides guidance on working with interpreters, which is available here.

Paragraph 5.8 of the psychologists as expert witnesses guidance sets out what to look for when considering whether an expert is sufficiently competent in the specialised field required, namely;

i. Qualifications and/or degrees in the areas in question;

ii. Number of years of relevant post-doctoral/post-qualification experience;

iii. Academic, professional and scientific publications in relevant areas;

iv. Demonstrations of professional practice, competence, specialist knowledge and expertise with a bearing upon the issues in the case; and

v. Current experience in applying psychology in the area of claimed expertise, e.g. clinical, counselling, educational, forensic, health, occupational, sport and exercise.

A helpful for checklist of things to consider or to clarify with any potential experts is included at Appendix 5 to the psychologists as expert witnesses guidance.

Appendix 4 to the psychologists as expert witnesses guidance provides guidelines as to appropriate timescales for different psychological assessments. Expert psychologists, when providing a cost estimate, should provide a breakdown of how many hours are needed to undertake each aspect of an assessment. Be cautious of experts providing unusually short time scales, particularly in relation to any interviews/observations.


Testing in expert reports

Expert reports that stray beyond their expertise into the role of a social worker or the judge are open to challenge, as are reports where the conclusions drawn are not supported by a proper analysis. Difficulties arise where conclusions are supported but by psychometric testing. Many tests cannot be released into the public domain as foreknowledge of the test would affect the answers people are likely to provide (paragraph 5.16 of the psychologists as expert witnesses guidance). This can a conflict with an individual's Article 6 rights, particularly in cases where a psychologist's conclusions are heavily reliant on tests that the court and the parties are not familiar with.

In these situations, the only way to ensure fairness is for the court and the other parties to have sight of the tests used. The BPS has produced guidance entitled "Statement on the conduct of psychologists providing expert psychometric evidence to courts and lawyers", available here. This guidance recommends negotiations to minimise the degree to which the psychologist's professional standards are compromised by his / her overriding obligation to the court. They give the example of a scoring sheet being provided to counsel only but not allowing this to leave court or for copies to be made. While tests such as the WAIS for cognitive testing will be uncontroversial, it is worth requesting a blank test or scoring sheet for lesser known tests, particularly those focusing on risk or propensity.

The use of personality tests in psychological reports should be approached with particular caution. Arden LJ (as she then was), in the case of Re S (Care: Parenting Skills: Personality Tests) [2004] EWCA Civ 1029, stressed that "if the judge was (exceptionally) minded to rely on the results of the personality tests, he had first to assess their validity, both generally and for the purpose of this case." She went on to say "personality testing of this kind cannot be used to resolve issues such as parenting skills unless they are validated by other evidence." Personality testing, as an area of psychology, is constantly evolving and care must be taken to assess the validity and reliability of any tests used to assess someone's personality, particularly where significant conclusions have been drawn from this.


Psychological research in professional reports


Psychological theory or research often crops up in professional statements such as those of the Guardian or the social worker. Phrases such as "research shows that …" often appear and are used to justify separating a child from their parents or their siblings. These statements are worryingly vague to what research is being referred to or the reliability or validity of this research. Such statements are meaningless as the body of research in psychology is broad and often, while there may be research supporting a particular assertion, there is also likely to be research supporting the opposite. Professionals wishing to rely on such statements must be able to show precisely what research they were relying on so this can be evaluated by the other parties.


Summary


In summary, the psychologists as expert witnesses guidance provides useful information on the role and responsibilities of different psychologists as well as what to look for when choosing an expert psychologist. Testing, in particular personality testing, in psychological reports should be approached with caution and the test itself requested if necessary. Equally, references to psychological research appearing in professional reports should be scrutinised to ensure that the research referred to is valid and reliable.

23/9/20