On Becoming an Expert Witness: Psycho-Legal Assessments

South Africa

I want to share some of my experience with those of you out there who are considering ‘forensic psychology’ as a new or additional professional pathway. Psychologists are not yet permitted by HPCSA to use the term ‘forensic’ to describe our self or our work, but one day we will be. Meantime, we conduct psycho-legal assessments. Some people call them medico-legal assessments, but since I am a psychodynamic psychologist, I use a developmental model rather than the standard medical model, which focusses on pathology, tends to be categorical rather than nuanced, and which fails to emphasize individual human variation, especially in psychological developmental pathways. In some of my reports, I have chosen to inform the Court of this viewpoint, thereby hoping to expand an understanding both of the medical model and the developmental model, and to inform the Court that the medical model so favoured in Western society (and, usually, our Courts) is not the only, or even the optimal, way to provide evidence-based expert psychological opinion. 

Whatever term or model we use, we are referring to the development and provision of expert opinion which will, or may, be used in court proceedings. Psycho-legal assignments form the bulk of my practice. I have always done, and enjoyed doing, psychological assessments, but in the last thirteen years have developed expertise in many different psycho-legal ones. Assessments at the interface of family law and mental health, such as care and contact, relocation, and adoption. Criminal law assessments for rape, torture and theft cases. Assessments to determine criminal capacity in children. Serious injury assessments. Each requires its own unique approach to suit the specifics of that particular matter. Over time, I have developed frameworks into which I can fit each unique assessment, and which now provide me with a clear roadmap of how to negotiate my way through each one: where the pitfalls are, which parts are, or feel, easier and more flowing, which parts feel messy and uncomfortable, what the risks are, and how best to protect myself and the final report. I think, and hope, that my learnings might be helpful to those considering embarking on this work.

 Let me first address some of the things I believed at the start of my journey. First, I looked forward to earning lots of money … and I suppose, at the beginning, lots of quick, easy money. Hah. Second, I thought it would be fairly easy work. After all, most psychologists have studied both research methodology and psychological assessments, so what’s the big deal? Second hah. Third, I believed it would be similar to something I already love doing: jigsaw puzzles. I named myself a psychodicktective. No hah to this one. More like many ahas! 

Let’s look at each of these anticipations, starting with lots of quick money. Hah number one. Yes, it is possible to earn a good hourly rate, perhaps better than the going rate for clinical work. For most of the assessments I have done, I have almost always spent – and needed to, to do a proper and thorough job – double the number of hours that I budgeted and quoted for. You simply can’t charge the client for 140 hours. But the more thorough, clear, and well-grounded your report is, the less likely it is that you will have to defend your written opinion in court with oral testimony and cross-examination. So, I’m exceptionally thorough and careful, and that takes LOTS of thinking, planning, and ‘psychodetectiving’. I count myself fortunate that I’ve only been subpoenaed to give oral evidence once, in a rape case. Almost all my other reports have led to out-of-court settlement, i.e. resolution. So, this is where you make your first choice: do much pro bono/unremunerated work and hopefully avoid stepping into a court room; or do a less thorough report and expect to be cross-examined.

 Second, hah number two. There’s no such thing as easy psycho-legal work. The work itself is complicated and complex, and you have to pay attention to a host of different issues, at many different levels. In addition, the stakes are often very high. I take a deep breath every time I hit the send button and another report wings its way away from me. Aggrieved clients – especially in the family law arena - often complain to HPCSA. It’s also possible to be sued. In addition, your professional reputation is on the line every time your signature is affixed to a report. And always, the possibility exists that you will be called to account in open Court for every single sentence you’ve written, or for the process aspects of the assessment. In my mind, protecting myself requires that I’m as careful about process issues as I am about content issues. From a process point of view, for example, you have to pay attention to things like how the referral comes to you and how to – or often, how not to – engage with the referral source; the possible difference between your own expectations and those of the referral source, client, or Court. You need to be sure you know who your client actually is, and then consciously design how you initiate engagement with the client. You must be aware from the outset of all your ethical obligations, for example, by ensuring clients are fully informed about a whole range of things. Issues to do with informed consent, and the signing of a contract, are key. In my talks, I will address these and other process issues in more detail, also sharing with you some of the mistakes I have made and the consequences of them.

 

Finally, the pleasure of the many ‘ahas’. The process of psycho-legal assessments feels to me exactly the same as doing a puzzle. It is a process of many discoveries, and of incremental integration. Despite how demanding the work is, I enjoy eventually finding clarity in the mess and mass of confusion that has piled up as I uncover, and discover, more and more information. It is very gratifying to me to draw the myriad pieces together into a coherent, contained, integrated picture. These pleasures make me want to do another assessment, and another. It is this enjoyment that makes me encourage anyone thinking of starting their own psycho-legal journey to go for it, but to do so with full knowledge of some of the bumps in the road ahead, as well as some of the delicious downhills that await you.

 


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