Practical Approaches to Forensic Mental Health Testimony

Citation

O’Sullivan, O.P. and Mohammed, J. (2020), "Practical Approaches to Forensic Mental Health Testimony", The Journal of Mental Health Training, Education and Practice, Vol. 15 No. 1, pp. 43-44. https://doi.org/10.1108/JMHTEP-01-2020-069

For higher forensic psychiatric and psychology trainees seeking to develop their understanding and skills in relation to the role of an expert witness, there is certainly no replacement for first-hand training under an experienced supervisor. This experience and exposure, however, can be hard to come by and may not be available in every training post. Equally, some may wish to begin working in this capacity later in their career when such opportunities are less available. For psychiatric trainees who do not necessarily have ambitions to work as expert witnesses, the need remains for a similar skill-set when giving evidence in mental health tribunals, for example. In terms of meeting training needs, there are a multitude of courses, certifications and textbooks on offer to those new to the subject. These are of greatly varying cost. Unquestionably, it can be difficult to know where to start.

Practical Approaches to Forensic Mental Health Testimony offers a practical hands-on guide to testifying in court on mental health issues. The authors are affiliated with the Harvard Medical School department of psychiatry where Dr Thomas G. Gutheil is Professor. Dr Frank M. Dattilio is a distinguished Psychologist also affiliated with the University of Pennsylvania Perelman School of Medicine. Both describe extensive experience as expert witnesses and have published widely. In 2011, both subsequently co-authored the Handbook of Forensic Assessment: Psychological and Psychiatric Perspectives (Drogin et al., 2011).

This book is divided into four sections and goes far beyond giving evidence and cross-examination skills. The first section covers core issues regarding the expert witness role. Preparation, presentation, bias and cross-examination are considered. The second section addresses limits on expert function. There are chapters dedicated to the limits on testimony and internal psychological obstacles to objectivity such as, “the will to win” and “exhibitionism”. There is a chapter dedicated to late withdrawal from a case, which examines various potential factors and suggests alternative modes of resolution. A section addresses the complexities fundamental to the attorney-expert relationship. Advice is offered on potential pitfalls of medico-legal alliances and an analysis of the unethical practice of attorney coaching in its likely forms. Finally, the authors tackle several sensitive problems unique to the role. These include reflections on testifying about colleagues, harassment, boundary issues and countertransference.

The book’s most obvious strength is the breadth of issues it covers while remaining cogent. There are also many examples throughout suggesting how best to manage some of the practical sides of the expert witness role such as billing, travel and administration. Regarding cross-examination, it uses clear illustrative examples to especially good effect to support each point of advice. These are typically in the form of a likely dialogue between an expert and a lawyer. Written for a US audience, there are little in the way of legal digressions such as to render it dense and impenetrable to psychiatrists practicing elsewhere.

Of note, the attention and consideration afforded to psychodynamic factors impacting on these various practical aspects of the role was particularly thoughtful. Furthermore, it managed to highlight these without sacrificing its clarity by overburdening the reader. Introductory courses and supervision are unlikely to provide such a comprehensive collection of helpful examples and address the relevant psychodynamic issues in such a structured manner.

In terms of limitations, the most obvious is its US focus. As such, readers from elsewhere will have to accommodate for differences in the legal systems and medical practice. By the same token, while some of the examples and contexts may seem less familiar or even less probable to non-US reader, they may increase awareness of more subtle variants of the phenomena discussed in their own jurisdiction. That being said, the challenges associated with the expert witness role are likely to be quite similar across the adversarial legal systems found in common law jurisdictions. In brief, the particular system determines the manner in which trials are conducted. The UK and USA share a similar legal system in this regard. By contrast, inquisitorial systems – such as those prevalent in mainland Europe – may present different issues for the expert and this is to be borne in mind by the reader. Admittedly, it has been several years since its publication, however, it would be difficult to argue its content and guidance has since become outdated. Moreover, we have not identified any other such resources so suited to forensic psychiatry and psychology trainees.

Its scope remains practical at all times. Readers are directed to a more comprehensive textbook such as the authors’ aforementioned handbook or Expert Psychiatric Evidence (Rix, 2011) published by the Royal College of Psychiatrists, to apprise themselves of the more procedural and indeed psycho-legal aspects such as, fitness to plead and stand trial and psychiatric defences.

This succinct and accessible textbook offers much to forensic psychiatrists and psychologists alike in terms of orientation to the various pitfalls and practical and ethical issues likely to be encountered when undertaking the role of expert witness. It is likely to improve awareness of what is asked of the expert and assist in negotiating challenging or contentious topics under cross-examination. As such, it would provide a sound platform for further training. Even if one were never to take the witness stand, it addresses several areas highly pertinent to report writing in general. Equally, it is likely to benefit psychiatrists and psychologists outside of forensic services. Engaging, focussed and clear, it offers an affordable overview and introduction to the area.

Implications for practice

• To become an effective expert witness, appropriate training, supervision and experience are necessary.

• The expert witness role presents various challenges for forensic psychiatrists and psychologists.

• A sound understanding and awareness of these challenges will improve a trainee’s potential to develop in this role.