Implications of a Forensic Psychiatrist's Perspective on Practice

1. Implications of Implications of Practice Note SC CR7: a forensic Practice Note SC CR7: a forensic psychiatrist’s perspective psychiatrist’s perspective A/Prof Andrew Carroll Private Medicolegal Practice Centre for Forensic Behavioural Science, Swinburne University of Technology Forensicare ‘Our Curious Minds’

2. Outline • The psycholegal bridge • Instructing versus influence • Treating versus expert roles • Collateral information • Tools and their misuse • Expert versus ‘common’ knowledge • The new standard questions

3. LEGALAND concerns for lawyers LEGALAND concerns for lawyers • Rules of evidence e.g. ‘admissibility’, ‘discoverability’ • Procedures • Legislation • Precedents • Others ? • Duties to client and Court

4. MENTALAND concerns for expert MENTALAND concerns for expert • Psychopathology: symptoms and cognitive deficits, assessed by: • Mental state examination • History • Testing • Collateral information • Diagnosis • Formulation • Opinions • Stopping short of ‘ultimate issues’ in sentencing • Duties to Court and “the profession”

5. THE PSYCHOLEGAL BRIDGE MENTALAND LEGALAND

6. We need to meet in the middle We should be very wary of crossing over to foreign land

7. Instructing versus influencing

8. SC CR7 para 5.4 SC CR7 para 5.4 “An expert must never alter a report or an opinion at the request of the commissioning party. If factual clarification is requested, or additional information is provided, a supplementary report must be prepared which clearly identifies the nature of any change of fact or opinion.”

9. RANZCP Professional Practice Guideline 11: RANZCP Professional Practice Guideline 11: Developing reports and conducting independent medical examinations in medico-legal settings Psychiatrists must never alter a medico-legal report at the request of any party, including their patient. If a factual clarification is requested or additional information is provided that results in a varied or contrary opinion, psychiatrists must produce a supplementary report that clearly identifies the existence of the original report and the nature of any change(s) (i.e. of fact or opinion).

10. RANZCP Professional Practice Guideline 11: RANZCP Professional Practice Guideline 11: Developing reports and conducting independent medical examinations in medico-legal settings Psychiatrists should use their discretion in regards to how much is explicitly considered in the body of the report based on what is necessary and relevant to include.

11. Instructing • Clear questions • Discussions upfront, before assessment and report, to clarify issues • Request for supplementary report to clarify issues, amend errors, incorporate new information • Clear instructions as to what to consider and include in reasoning • BE CAREFUL WHAT YOU ASK FOR especially around risk !

12. Influencing • “Send me a draft report” • “Can you please take out this paragraph…” • “That bit he told you isn’t actually true...” • “That will transgress the plea...” • “That was interstate so doesn’t count...”

13. Treating versus Expert roles

14. SC CR7 para 6.7 SC CR7 para 6.7 “A report prepared b6 the subject’s treating practitioner should be confined to information relevant to treatment provided to the subject (e.g. presenting signs and symptoms, diagnosis, clinical formulation, treatment, treatment response and treatment needs).”

15. The Note does not apply to the rapid, pragmatic world of Magistrates’ Courts: similar considerations ought to apply however, when considering ‘duties’ of the psychiatrist involved

16. RANZCP Professional Practice Guideline 11 RANZCP Professional Practice Guideline 11 Developing reports and conducting independent medical examinations in medico-legal settings For the purposes of this document, an independent medical examination and report is a psychiatric assessment and report requested by a third party and provided by a psychiatrist not involved in any past or present therapeutic or other interpersonal relationship with the examinee.

17. RANZCP Professional Practice Guideline 11 RANZCP Professional Practice Guideline 11 Developing reports and conducting independent medical examinations in medico-legal settings The RANZCP recognises that treating psychiatrists may be asked or be required to provide medico- legal reports. This includes treating psychiatrists working in rural and remote districts or in jurisdictions where statutory requirements demand such reports. This does not constitute an independent medical examination and report by a psychiatrist. In this circumstance, the psychiatrist must state his or her role as a past or present treating practitioner.

18. RANZCP Professional Practice Guideline 11 RANZCP Professional Practice Guideline 11 Developing reports and conducting independent medical examinations in medico-legal settings • Treating psychiatrists may be able to excuse themselves from providing a medico-legal report as the academic literature supports a range of views on the management of any conflicts of interest (Taylor et al., 2012). If the treating psychiatrist makes this decision, it is recommended that their patient/s are informed of this decision. • Treating psychiatrists responding to medico-legal report requests must clearly identify their role and must recognise and disclose to the referring agent / agency the extent and effects of any conflict between their patient’s treatment and medico-legal needs. • The health interests and needs of the patient of a treating psychiatrist must always be paramount in responding to a request for a medico-legal report.

19. Collateral information: comprehensive versus pragmatic

20. SC CR7 para 6.1 (k) SC CR7 para 6.1 (k) • “a declaration that the expert has made all the inquiries and considered all the issues which the expert believes are desirable and appropriate, and that no matters of significance which the expert regards as relevant have, to the knowledge of the expert, been withheld.”

21. SC CR7 para 6.2 SC CR7 para 6.2 • “Where the nature of the expert report makes it impracticable or inappropriate to comply with one or more of the requirements of 3.1, the report should identify the non-compliance and provide an explanation for it.”

22. What do we need ? • Will vary with case • Worth discussion upfront • If serious and mental impairment/fitness issue involved---seek Justice Health (and, usually, any other treatment notes) • Not expert’s job to obtain documents but may be able to talk to treater (with consent)

23. Tools and their misuse…

24. SC CR para 6.5 SC CR para 6.5 • “…the measure(s) administered are well-accepted for the purposes for which they are being used, and are appropriate for use in Australia” • Beware e.g. diagnosis of severe mental illness based solely on MMPI self-report data • Beware assumptions re: cognitive status if on sedative medication and/or alcohol/illicits at time of testing

25. ‘Expert’ versus ‘common’ knowledge

26. SC CR7 para 7.7 SC CR7 para 7.7 • “Any opinion expressed with respect to the subject’s remorse, or lack of remorse, must state as comprehensively as possible the basis of the opinion. If the expert concludes that a lack of remorse is the result of the condition, this should be pointed out.”

27. New ‘standard’ questions

28. SC CR7 para 7.4 and 7.8 SC CR7 para 7.4 and 7.8 • “the nature, extent and effect of the condition experienced by the subject at the time of the offending and/or at the time of sentence; • how the condition affected, or is likely to have affected, the mental functioning of the subject at the time of the offending or in the lead up to it; • how the condition is likely to affect the subject in the future and whether this has implications for the type of sentence which the judge should consider; • whether the condition would be likely — (i) to affect adversely the ability of the subject to cope with imprisonment; and/or (ii) to deteriorate as a result of the subject being imprisoned. ”

29. SC CR7 para 7.4 and 7.8 SC CR7 para 7.4 and 7.8 • In relation to the subject’s prospects of rehabilitation, the report should where appropriate identify: • possible therapeutic and rehabilitative options for the subject; • the subject’s particular rehabilitation needs; • any aspects of the subject’s mental functioning which may impede rehabilitation; and • any implications of the condition for the risk of future offending.

30. carrollforensic@gmail.com carrollforensic.com https://www.ranzcp.org/Files/Resources/College_ Statements/Practice_Guidelines/PPG-11-FFP- Developing-reports-and-conducting-indep.aspx