Clinical reports on traumatized refugee claimants and the IRB Guideline on Vulnerable Claimants

1. Clinical reports on traumatized refugee claimants and the IRB Guideline on Vulnerable Claimants Janet Cleveland, Ph.D. Researcher Research Chair on International Migration Law Université de Montréal and McGill University Health Centre

2. Refugees and immigrants: distinctions • Immigrants: admission based on economic criteria OR as a family member • Refugees: individuals with serious reasons to fear persecution in country of origin on grounds defined by law

3. Refugee claim procedure • The refugee claimant (asylum seeker) must prove entitlement to refugee status • Testimony at hearing + documents (including clinical report) • Rejected refugee claimants may apply for: • Judicial review (Federal Court) • Pre-Removal Risk Assessment (PRRA) • Admission on Humanitarian and Compassionate grounds (H&C)

4. A refugee is a person who has serious reasons to fear that if sent back to his country of origin: 1. He would be persecuted because of: -race, ethnicity or language, or -nationality, or -religion, or -belonging to a particular social group (e.g., gender, sexual orientation, or family status), or -political opinions. OR 2. He would be exposed to: - a risk of torture, or - a risk to his life (excluding ‘natural’ causes such as epidemic, famine, lack of health care), or - a risk of cruel or unusual treatment

5. In short, the asylum seeker must prove that: ØIf sent back to her country of origin, she would be exposed to a serious risk of severe mistreatment;   • She is at risk for one (or several) of the reasons defined by law;  • Authorities in her country refuse or are unable to protect her • She would not be safe anywhere in her country.

6. Grounds for fear Fears of apprehended mistreatment if returned to country of origin • Exception: ‘Compelling reasons’ not to return, including trauma due to torture In practice: fears must also be based on past mistreatment experienced: • by the individual, or • by family members, or • by others in similar circumstances (e.g., same ethnic group, same political party)

7. Importance of clinical reports for refugee claimants’ well-being • Obtaining refugee status is crucial for well-being • Lack of status: Uncertainty, separation from family, lack of social integration, limited job opportunities, etc. • Thorough assessment and a well-written report may make a major difference to chances of obtaining refugee status

8. Two main functions of clinical reports 1. Ability to testify • Assessing the effect of the claimant’s cognitive and emotional problems on his ability to understand proceedings and testify coherently at the hearing • Assessing the effect of the proceedings on the claimant’s mental health • Suggesting procedural accommodations 2. Consistency of symptoms with the story • Assessing whether the claimant’s symptoms are consistent with the alleged trauma (basis for refugee claim)

9. Effect of mental health problems on ability to testify • In this specific case: reasons to interpret confusion, inconsistencies, avoidance, emotional numbing, etc. as signs of mental health problems (rather than intent to deceive) • Recommendations: procedural accommodations to reduce distress and to create conditions that will help the claimant tell her story

10. Consistency of symptoms with the claimant’s story • Are the claimant’s symptoms consistent with the alleged traumatic events? • Here, the clinician’s opinion directly impacts the plausibility of the refugee claim (especially if there is a diagnosis of PTSD – which involves a finding that the person did in fact experience significant trauma )

11. Guideline on Vulnerable Claimants Goal : Procedural accommodation for individuals identified as vulnerable persons by the IRB (1.1) Definition of vulnerable persons: • Individuals whoseability to present their cases before the IRB is severely impaired (2.1) or who have severe difficulty in going through the IRB process (1.5) • Close family members may be declared vulnerable if affected (2.2)

12. Definition of vulnerability (cont.) Vulnerability may be due to: • having experienced or witnessed torture, genocide or other severe mistreatment (including gender-related persecution); • mental or physical illness or handicap • age (minors, elderly persons) (1.5, 2.1) Only particularly severe cases will be deemed ‘vulnerable persons’ (2.3)

13. Proving vulnerability • Preferably:detailed report by expert following in-depth assessment (2.4, 8.1) • Report addressing claimant’s particular difficulty coping with the hearing process,including (in)ability to give coherent testimony (8.1)

14. Difficulties and accommodations Vulnerability may: • affect memory, behaviour and ability torecount relevant events; • affect consistency and coherence of testimony; • lead to fear of persons in a position of authority; • make the person reluctant or unable to talk about his experiences (4.1) Procedural accommodations should help to reduce or overcome these difficulties

15. Procedural accommodations (examples) • Priority scheduling (or delay) (9.1) • Allowing claimant’s lawyer to proceed first (4.2d) • Creating a more informal setting (4.2c) • Gender of persons at hearing (4.2f) • “Allowing any other procedural accommodation that may be reasonable in the circumstances” (4.2h) • “In probing the information provided by the person, the IRB will attempt to avoid traumatizing or re-traumatizing the vulnerable person” (10.1) • See IRB Training Manual on Victims of Torture

16. Procedural recommendations • Consult the lawyer as to what recommendations would be useful • Preferable not to recommend that the IRB refrain from questioning the claimant on traumatic event as a whole • Instead, identify especially sensitive areas needing to be approached with particular tact and sensitivity, and recommend measures such as allowing the claimant’s lawyer to go first

17. Expert reports - content 8.3 Expert reports should mention: a) the particular qualifications and experience of the professional thatdemonstrate an expertise which pertains to the person’s particular condition; b) the questions that were posed to the expert by the person who requested theexpert report; c) the factual foundation underlying the expert’s opinion; d) the methodology used by the expert in assessing the person, including whetheran interview was conducted, the number and length of interviews, whethertests were administered, and, if so, what those tests were and the significanceof the results;

18. Expert reports – content (cont.) e) whether the person is receiving treatment and, if so, the nature of thetreatment and whether the treatment is controlling the condition; f) whether the assessing expert was also treating the person at the time ofproducing the report; g) the expert’s opinion about the person’s condition and ability to participate inthe hearing process, including any suggested procedural accommodations and why particular procedural accommodations are recommended.

19. Expert reports - limitations 8.4 Experts should not offer opinions on issues within the exclusive jurisdiction of thedecision-maker, such as the merits of the person’s case.  8.5 An expert’s opinion is not in itself proof of the truthfulness of the information upon which it is based. The weight given to the report will depend, among other things, on the credibility of the underlying facts in support of the allegation of vulnerability.

20. IRB criticisms of expert reports • Boilerplate (cut & paste) reports • Impinging on IRB jurisdiction (e.g., opinion on merits of claim) • Based solely on the claimant’s word • In this case, if the decision-maker does not find the claimant credible, she may ignore the expert report SO • Link your opinion to the claimant’s specific symptoms • Stay within your clinical expertise • Highlight your own observations • Explain why you think the claimant’s symptoms are consistent with his story

21. Expert evidence - admissibility General rule: opinion evidence is inadmissible. Expert evidence is an exception to the rule, but only if: • The expert has relevant qualifications; • The opinion is based on a thorough assessment of the claimant; • The facts on which the opinion is based are credible; • The opinion is within the clinician’s field of expertise.

22. Establishing qualifications Experts must establish “particular qualifications and experience (…) that demonstrate an expertise which pertains to the person’s particular condition” (8.3a) List • current position • academic qualifications • relevant clinical experience • experience with refugees, survivors of torture, rape, or other organized violence, or with persons of the claimant’s cultural group • relevant publications

23. Quality of assessment 8.3 d) [The report should specify] the methodology used by the expert in assessing the person, including whether an interview was conducted, the number and length of interviews, whether tests were administered, and, if so, what those tests were and the significance of the results

24. Foundational facts Foundational facts = facts on which the clinician bases her opinion, including: • Behaviour and other signs observed by the clinician; • Symptoms reported by the claimant; • Test results (if tests were conducted); • Alleged traumatic events and other antecedents reported by the claimant • Some foundational facts are within the clinician’s expertise, others not

25. Types of foundational facts 1. Facts within the clinician’s expertise a) Directly observed signs (e.g., tears, confusion) Specify context (e.g., claimant shakes when describing the traumatic event ) b) Symptoms reported by the claimant (e.g., insomnia, nightmares, flashbacks) Explain clinical plausibility (consistency with observed signs, typical pattern, etc.) c) Test results Clinician’s description of directly observed signs is factual evidence - cannot be discounted by IRB But: credibility of self-reported symptoms depends partly on claimant’s credibility, partly on clinical plausibility

26. Types of foundational facts (cont.) 2. Facts on which the clinician has limited or no expertise Asylum seeker’s account - Clinician has no expertise on inherent plausibility (e.g., country conditions) - Clinician has some expertise on consistency between symptoms and alleged trauma • Important to explain the clinical basis for your consistency judgment (e.g., these symptoms fit the typical clinical picture found following this type of traumatic event)

27. Presenting the claimant’s story Obtain the Personal Information Form (PIF) - to avoid contradicting the claimant’s version of traumatic events - to identify relevant issues When summarizing the claimant’s story: • Include enough detail to discuss consistency of symptoms and alleged antecedents, • But AVOID too much detail (e.g., do not mention precise dates or any other details that are not essential to your opinion)

28. Opinion • Diagnosis: exclusive expertise • PTSD diagnosis: opinion on existence of trauma • Directly observed signs: factual evidence • Consistency between symptoms and alleged traumatic antecedents • “ Symptoms are consistent with…” NOT “Symptoms result from…”

29. Opinion on sincerity AVOID writing : [X] is an honest person, or [X] should be accepted as a refugee BUT you may write (for example): “[X] impressed me as very sincere, which strengthens my confidence in my diagnosis”, or “ [X] answered my questions openly and honestly, which reinforces my opinion that his symptoms are consistent with the alleged traumatic events”

30. Effect of return to country of origin • May be relevant to say that, in your professional opinion, returning the claimant to her country of origin would be harmful to her mental or physical health

31. Predicting problems testifying • Describe relevant behaviour observed during the assessment, e.g., confusion, incoherence, numbing • Explain why you believe this is due to trauma or mental problems (rather than intent to deceive) • Link predictions to the specific characteristics of this individual • Be very cautious making predictions about behaviour at the IRB hearing – an erroneous prediction may hurt your credibility • Explain the difficulty of predicting how each individual will respond in different contexts