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Expert Witness Psychologists and Remote Working
  • Apr 6, 2021
  • Latest Journal

By Professor Leam A. Craig
Forensic Psychology Practice Ltd, The Willows Clinic, UK
Centre for Applied Psychology, University of Birmingham, UK
Faculty of Business, Law and Social Sciences, Birmingham City University, UK
School of Psychology, University of Lincoln, UK
& Professor Hugh C. H. Koch
Hugh Koch Associates Ltd, UK
Faculty of Business, Law and Social Sciences, Birmingham City University, UK

Introduction
The Covid-19 pandemic which has gripped the world has forced changes in the way we work across all spheres of the economy.  New legislation allows for emergency powers under the Coronavirus Act (2020) to ensure suitable social distancing restrictions are adhered to as well as restricted movement between areas of the country.  This is perhaps felt most acutely in circumstances which often rely on the face-to-face assessment of individuals including the court system and the use of expert witnesses, including psychologist expert witnesses, with remote hearings and remote psychological assessment being conducted.  

It has been acknowledged that the reality is that remote hearings will continue for the foreseeable future (Mr Justice MacDonald, 2020), and by implication, remote psychological assessments within judicial proceedings will likely become the norm, at least for the foreseeable future, which have been recognised as an acceptable method of assessment and sanctioned as such by HM Courts & Tribunal Service.  

At the time of the Covid-19 outbreak, there was little by way of formally published guidance for psychologists on how to conduct remote psychological assessment in the preparation for court assessments in any of the main legal jurisdictions (criminal, civil and family). The British Psychological Society guidance, Psychologists as expert witnesses in the Family Courts in England and Wales: Standards, Competencies and Expectations (January 2016), made provision for indirect assessments, “Completion of psychological assessment generally involves direct assessment and contact with the individual and one or more members of the family.  Indirect assessment (relying on documentation and other sources such as video evidence) may be appropriate” (BPS, 2016. p 5).

There are now been several published guidance documents specifically for psychologist expert witnesses on how to conduct remote psychological assessments for court (British Psychological Society 2020a/b).  In this article we will briefly outline some of this guidance saved to main discussion points.

Literature Review on Video-Link Psychological Assessment and Intervention
The methodology of using video-link technology (VT) in the assessment and treatment of psychological conditions is not new. However, although VT is comprehensively supportive of forensic assessment (Brett & Blumberg, 2006; Saleem & Stankard, 2006), from a clinical perspective, the pressing and lingering question is whether VT generated assessment reports produced for the courts are comparable to or could supersede the traditional face-to-face medium.  It was found in a review of the published literature in regard to what is and is not effective related to telemental health found that telemental health is effective for diagnosis and assessment across many populations (adults, child, geriatrics, and ethnic groups) and for disorders in many settings (emergency, home health) and is comparable to in-person care (Hilty et al., 2013).  

The National Prisoner Healthcare Network (2016) provided some guidance and direction on the access of psychological therapies for prisoners detained in Scottish prisons.  Briefly, this guidance outlines that health services are encouraged to provide services (assessment, diagnosis and interventions) at a distance via digital and mobile technologies.  This includes capturing and relaying physiological measurements from home/community to clinical review.  It also includes 'teleconsultations' where technology such as video conferencing is used for consultations between clinicians and patients.  The Scottish Centre for Telehealth & Telecare (SCTT: HCP049 report) has been working with two of Scotland's prisons to establish the use of VT as a way of improving the prisoners’ access to forensic psychiatry services.   

There is a substantial body of evidence for the delivery and efficacy of remote / online psychological assessment and interventions.   Several forms of technology‚Äźenabled psychotherapy now exist. As an alternative to ‘therapist delivered’ CBT, in February 2006, the National Institute for Health and Care Excellence (NICE) published a Technology Appraisal (TA097) on the use of computerised delivery of cognitive behaviour therapy (cCBT). Supported by the Department of Health document, Improving Access to Psychological Therapies (IAPT) programme: Computerised Cognitive Behavioural Therapy (cCBT) implementation guidance (2007), the technology appraisal provided background information on cCBT and the management of people with common mental health conditions for whom this type of intervention is appropriate and a number of computerised software packages were recommended.  

Videoconferencing has been identified to have been used in a variety of therapeutic formats and with diverse populations, is associated with good user satisfaction, and is found to have similar outcomes to traditional face-to-face psychotherapy (Backhaus et al., 2012). Other forms of interventions range from psychoeducational static webpages and complex, personalised, interactive cognitive-behavioural-based self-help programmes, to videoconferencing, self-help support groups, blogging, and professional-led online therapy.  A meta-analysis by Barak et al. (2008) found a medium effect size (a number measuring the strength of the relationship between two variables in a statistical population) for online therapy and found the effect to be long lasting. They also found no significant difference between the use of a human therapist or a web-based therapy intervention.

Assessment Considerations
Assessments undertaken by psychologists include diagnostic assessments supporting legal or statutory processes and recommendations of important medical treatment. The use of VT presents a number of challenges on psychological assessments which would ordinarily be easily overcome during face-to-face assessments (e.g., environmental control and the management of distractions).  In some circumstances, the recording and observation of non-verbal behavioural cues (e.g., avoidant eye gaze) may be compromised when using video-link technologies.  

Preliminary findings such as a diagnosis, formulation or judgement, based on explicitly acknowledged compromises or constraints on the assessment process should be acknowledged when using VT.  The use of VT in the assessment and diagnosis of certain conditions may also prove challenging.  Assessments of individuals with complex psychiatric conditions, such as Autism Spectrum Disorder (ASD), Attention Deficit Hyperactivity Disorder (ADHD), assessments of cognitive decline/dementia, some neuropsychological assessments, or assessments of major mental illness (e.g., delusional disorder, schizophrenia), may be more challenging via video-link, particularly where the person is required to sit still for a prolonged period of time or where the assessment of behavioural cues and nuances (eye contact, interpersonal exchange) are central to the assessment and diagnosis, which may be lost due to the video-link. Such assessments, and subsequent diagnoses, will likely be as equally as reliant upon collateral information as the clinical interview itself.  Video-link assessments and subsequent diagnoses of major mental illness is likely to be particularly problematic.  Similarly, assessments of the impact of trauma (sexual abuse, exploitation, violence) will also need careful consideration, and may require the additional interview of friends and family to corroborate symptoms. However, several of these issues pertain to face-to-face assessments too.

Practical Considerations
Other issues of importance when using VT to complete psychological court assessments is the safety of the person during remote assessment sessions and to have a safety plan in place (Luxton, O’Brien, McCann, & Mishkind, 2012).  Some people may find interviews demanding and distressing and the support available at the end might be severely limited due to the social distancing restrictions. However, clinical experience where undertaking entire interviews indicates support, reassurance and empathy can still be determined in remote interviewing to good effect.

A principal concern involves what to do if a person becomes distressed or has a medical emergency during a remote assessment session. Safety plans should include procedures for contacting emergency services in the person’s locale, alternate contact methods in case the synchronous telehealth connection is lost (e.g., backup phone contact), and plans for resolving technical problems. Participants may be vulnerable due to pre-existing mental or physical health conditions or by the stressful nature of proceedings. Interviews can be demanding and distressing and the support available at the end might be severely limited given the social distancing. Consideration should be given to the provision of support after the interview is concluded. Again, these are considerations which are similar to when face-to-face interviews are undertaken.

Cultural factors may also adversely impact on a video-link assessment, including the person’s age, technological familiarity, and culture-specific norms to assure valid and reliable assessments. For example, the remote physical presence inherent may create a barrier that reduces a person’s engagement in the assessment process, especially among members of cultures or groups that emphasize inter-personal connectedness or that rely heavily on nonverbal interactions. Those who are less comfortable or have less experience with technology, such as elderly or very young children, may display a more drastic discrepancy between in-person and video-link assessments (Rohland, Saleh, Rohrer, & Romitti, 2000).  Person’s with a history of adverse reactions during treatment (e.g., severe panic attacks), or those who are at high risk of harm to self or others may not be appropriate candidates for telehealth services provided to clinically unsupervised settings (Luxton, O’Brien et al., 2012). These issues should also be considered when conducting remote assessments, especially when providing assessment results.  Again, individuals who find face-to-face interviews too intrusive may find remote interviews less stressful and hence advantageous.

Within family law proceedings, there may be the requirement to observe contact or family interactions. Observing contact between parents/ care givers and children using video mediated technology is likely to be problematic as it would be difficult for the clinician to see everything, and it would be difficult to understand what maybe actually happening in the room. As an observer, the clinician may miss/be less observant of things happening in a room, when compared to observing contact whilst being physically present in the room. Addressing this at an early stage of the assessment process is important as it may not be receiving much attention. Careful placement of the camera during a contact family session will determine how much is visible to ensure that all interactions are captured. Extra effort should be made to access previous contact records to help inform the assessment. When engaging children and young people in an assessment for court it is recommended that the British Psychological Society guidance considerations for psychologists working with children and young people using online video platforms (2020c) is considered.

In some circumstances, it may be appropriate to label findings as ‘preliminary’ or ‘provisional’ and explicitly acknowledge the compromises or constraints on the assessment process. Psychologists should be clear when reporting diagnoses, judgements or other findings about the inherent risks, and include recommendations for review and further assessment in future where appropriate. Those with communication and/or known learning difficulties may not be easily or appropriately engaged online. An attempt should be made, and if insurmountable, discussions are needed with the instructing party as to how these difficulties can be overcome. It may lead to an initial report being filed to be followed up with an addendum later. Extra attention needs to be given to engaging children as well as vulnerable adults during video-link assessments.  However, in this circumstance, the time and cost implications of a further assessment, remote or face-to-face, needs to be discussed and agreed with the instructing party.

Methodological Limitations
There have been concerns that VT used in forensic settings presents additional challenges that may negatively affect the accuracy and the validity of the assessment results (Adjorlolo & Chan, 2015).  These include: issues of confidentiality, the competencies of the practitioner using the technology, the use of certain psychometric tests and assessments of individuals with mental disorders being more resistant to telehealth than those with affective disorders. The use of online based assessments and interventions are open to obvious criticism such as: the lack of nonverbal cues and difficulty in establishing a therapeutic alliance which are important to the counselling process (Rochlen, Zack, & Speyer, 2004). The ability of the expert to build rapport, particularly when assessing complex or challenging conditions, may be challenging when using VT.  Being able to judge subtle behavioural changes in the individual may well be missed when using video-link.  Similarly, it may be problematic to determine the qualitative aspects of a person’s presentation using video-link methods. However, patient satisfaction is almost always high and is similar to the satisfaction levels of patients receiving face-to-face care (Brown et al., 2014; Richardson et al. 2009). Most studies found that therapeutic alliance between the patients and clinician did not differ, however, there has been exceptions (Backhaus et al., 2012).  Studies examining the quality of therapeutic alliance in videoconference therapy and face-to-face therapy when treating PTSD using CBT found that the therapeutic alliance still develops very well in both treatment conditions and that there is no significant difference between the two (Germain et al., 2010; Olden et al., 2017). This is consistent with the second author’s (HCHK) extensive experience carrying out assessments in a personal injury (civil) context.

Oral Testimony via Video-Link
As with remote psychological assessments, expert witness psychologists are increasingly being asked to provide oral testimony via VT.  The use VT used in court in hearing oral testimony is not new.  The Civil Procedure Rules: Practice Directions Part 35 Experts and Assessors (2010) make provision for video-link oral testimony where those instructing experts should, “…give consideration, where appropriate, to experts giving evidence via a video-link (Section 19.2, subsection C). Section 51 of the Criminal Justice Act 2003 enables the court to allow witnesses (other than the defendant) in the United Kingdom to give evidence by live link if the court is satisfied that giving evidence in this way is in the interests of the efficient or effective administration of justice.   As Lord Slynn of Hadley observed in Polanski v Condé Nast Publications Ltd [2005] UKHL10, “…It seems to [me]...that as a starting point it is important to recall that although evidence given in court is still often the best as well as the normal way of giving oral evidence, in view of technological developments, evidence by video link is both an efficient and an effective way of providing oral evidence both in chief and in cross examination.”  More recently, R (Kairie and Byndloss) v Home Secretary [2017] UKSC 42 [2017] 1 WLR 2380, observed there is “…no reason in principle why use of modern video facilities should not provide an effective means of providing oral evidence and participation from abroad, so long as the necessary facilities and resources are available” (paragraph 103, page 37).

A recent survey indicated that 37% of the experts surveyed believe that giving evidence via video-link is as effective as experts giving evidence in court (The Times and Bond Solon Expert Witness Survey, 2017).  Response to this by expert witnesses was mixed.  Some suggested that video-link oral testimony is effective and time efficient whereas others have suggested that behavioural nuances are lost, and it is difficult to convey evidence.  Some have indicated a witness’s credibility is partly established through interaction with counsel, which is to some extent ‘sanitised’ by a video link. Others observed that, “video links fail to convey the full attitude of the witness which involves body language, and immediate reactions to questions.  It is not as easy to question the witness repeatedly on video link.” It is now widely held that demeanour and social behaviour, including non-verbal cues, can be reliabily observed and assessed during remote interviews and can validly complement the expert’s review of verbal report and consistency with documentation and other available evidence in the remote context.

Opposition to the use of video conferencing is usually focussed on the perceived inability of a party effectively to cross-examine the witness and to judge their demeanour, although this was rejected in McGlinn v Waltham Contractors Ltd [2007] EWHC 149 (TCC) (21 February 2007).  Similarly, in United States v. Gigante (1999), the court stated that “videoconferencing preserved all of the characteristics of in-court testimony because the witness was sworn, subject to cross, testified in view of the jury and the court, and testified in front of the defendant himself.”

VT is currently the only available medium through which experts, including psychologists, can testify remotely during court proceedings.  In the present pandemic, where parties, counsel, judiciary and court staff all face the same Covid-19 restrictions and limitations,  the use of VT may be adopted consensually, or by direction of the court, as the only practical option to ensure that hearings can proceed. Indeed, recent guidance to Parole Board members is to take a flexible approach when determining the requirement of a hearing as “many cases can be decided fairly without a face-to-face oral hearing” (Parole Board Member Guidance, 2020, p.10).

The issue of deciding when remote interviewing is permitted and face-to-face is not is also affected in the UK by the Government’s Covid-related recommendations and guidelines reflecting social distancing and allowed interaction. Like other professionals, experts and instructing parties are ethically bound by these guidelines.

Conclusions
Face-to-face assessment is generally considered the gold standard when conducting psychological assessments for court. However, where face-to-face assessments present challenges due to Covid-19 restrictions, specialist video interviews are, not only justifiable, but are also a clinically valid methodology. Remote psychological assessments can be completed in lieu of in-person assessments and should be the option of choice rather than delaying potentially important findings for the court. There are a number of potential advantages of technology based psychological assessment and interventions over face-to-face assessments and treatments as well as some drawbacks.  There is enough available evidence for those instructing expert witness psychologists to acknowledge the clinical utility and accuracy of video-link psychological assessments while at the same time managing practical issues without redirection in effectiveness.

For the period while social distancing restrictions are in place, it is likely psychologists working as expert witnesses will continue to complete psychological assessments for courts using VT. Psychologist expert witnesses will need to use their clinical judgement as to how they apply these practical and clinical considerations when completing remote psychological assessments in judicial settings and ensure full recognition of any potential reliability-related issues is fully and explicitly acknowledged in the body of any written document.

It is clear that Covid-19 has brought an acceleration towards using remote working in all areas of legal processes and litigation. Lockdown and enforced remote working has shown that experts can trust their ability to carry out interviews at home or remotely, and also address cyber security issues responsibly. Remote working allows assessments to continue in a reliable and effective manner. This medium of working has presented experts and the legal sector with a big challenge to enable them to provide both access to justice and ensure experts evidence delivered remotely is both reliable and valid. Despite challenges, the courts recognise the positives that have arisen in obtaining and providing psychological assessment within a high-quality service context, accommodating the important unique issues raised in this article.

Authors:
Professor Leam A. Craig
BA(Hons) MSc PhD MAE FBPsS FAcSS CPsychol CSci EuroPsy
Consultant Forensic and Clinical Psychologist
Director, Forensic Psychology Practice Ltd
Chair, British Psychological Society, Expert Witness Advisory Group
Email: leamcraig@forensicpsychology.co.uk

Professor Hugh C. H. Koch
BSc (Hons), Dip ClinPsy, Ph.D. C.Psychol
Consultant Clinical Psychologist
Director, Hugh Koch Associates Ltd
Member, British Psychological Society, Expert Witness Advisory Group
Email: hugh@hughkochassociates.co.uk

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