In R v Turner (1975) 60 Cr. App. R. 80, Lawton LJ stated: “…the fact that an expert witness has impressive scientific qualifications does not by that fact alone make his opinion on matters of human nature and behaviour within the limits of normality any more helpful than that of the jurors themselves; there is a danger that they think it does…Jurors do not need psychiatrists to tell them how ordinary folk who are not suffering from any mental illness are likely to react to the stresses and strains of life.”
The psychiatric expert witness is a witness who provides to the court a statement of opinion on any admissible matter calling for expertise by the witness and is qualified to give such an opinion; “An expert’s opinion is admissible to furnish the court with the scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary.” (R v Turner [1975] 1 All ER 70)
When instructing a psychiatric expert, it may be helpful to consider the following 7 tips:
- Do you need an expert?
If a bench or jury is going to be able to decide upon the case by listening to or viewing the evidence and bringing to bear their own senses, knowledge and experience, then no expert is needed.
In my experience, it can be useful to have an initial conversation with the instructing professional to establish whether expert psychiatric evidence is likely to assist the Court. Of course, if it is unlikely to be helpful, valuable time and money can be saved.
- When is an expert an expert?
The psychiatrist claiming expertise must have acquired by study or experience sufficient knowledge of the relevant field to render their opinion of value.
It is very important that experts understand the dangers of taking instructions outside of an expert’s direct field of expertise. In Pool v GMC [2014] EWHC 3791 (Admin) the High Court held that doctors that hold themselves out to be experts in a particular field must ensure that they are sufficiently expert enough. Dr Pool had accepted instructions as an expert witness in proceedings before the Health Professions Council in relation to the fitness to practise of a paramedic with a history of post traumatic stress disorder and a personality disorder. The paramedic objected to the evidence on the grounds that Dr Pool was not an expert. The High Court found that the Fitness to Practise Panel was not wrong in concluding that Dr Pool was not on the Specialist Register in the category of general psychiatry, had not completed any higher professional training and that “his qualifications and experience did not equip him to be an expert”.
- Is the expert independent?
The psychiatrist must be able to provide impartial, unbiased, objective evidence on the matters within their field of expertise i.e. the expert is independent of the parties to the proceedings.
This can be of particular relevance when an expert report is sought from a treating psychiatrist i.e. a psychiatrist who is treating the individual for whom a report is being sought. On some occasions, the preparation of an expert report by the treating psychiatrist can have an adverse impact on the therapeutic relationship with the individual, particularly where the individual disagrees with the conclusions of the psychiatrist.
Also, while the prior acquaintance with the individual can be useful, the treating psychiatrist may not always have the necessary expertise in relation to medico-legal report preparation.
- Is the evidence reliable?
As with other expert evidence, there should be a reliable scientific basis for the psychiatric evidence or it must be part of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience.
- Are the findings/recommendations clear?
While many psychiatrists are excellent clinicians with extensive knowledge and experience, this doesn’t always translate into a polished finished product.
It is therefore essential that the instructed expert psychiatrist is capable of conveying their findings and conclusions in a way that is easily understood by the layperson; reports must be balanced, robust and logical.
- Are the recommendations practical?
It is ideal if the instructed psychiatrist is aware of local services so that reports that make recommendations are of practical use. If the author is not the treatment provider, liaison with local services is vital to assure authorisation of a bed for hospital orders or other treatment provision in a community setting is available prior to making any recommendation.
It is important for instructing professionals to be aware that there are significant pressures on NHS hospital beds and that there can be delays in identifying an available and appropriate bed.
- Can the expert deliver?
It is good practice to ensure agreement of deadlines and fees with the expert to avoid misunderstandings or problems at a later stage.
It is essential that the instructing professional confirms that the psychiatrist accepting instructions has enough time to do the work and to do it thoroughly and to a good standard. Many experts have busy clinical commitments in addition to their medico-legal practice; it is therefore important that deadlines and expectations are clear e.g. if there is a need to attend Court, the expert may need to rearrange clinical commitments.
[i] The author is a NHS Consultant Psychiatrist and fellow of the Royal College of Psychiatrists. He is also a senior consultant at www.psychiatricreport.com, one of the UK’s leading providers of expert psychiatric and psychological reports.