Instructing Mental Health Professionals As Court-Appointed Experts in the Family Courts - Common Issues and Misconceptions

Working hand in glove with Gavin Emerson, a mental health professional and conflict resolution expert, whose value is focused on understanding the “psychology” of our clients, their former spouses, partners and co-parents and the dispute between them in order to maximise agreement or litigation success, it should be no surprise that I am very much in favour of mental health professionals being involved in the family justice system.

However, even in the most straightforward and typical of circumstances in which they are instructed i.e. assessing whether a diagnosis exists for one or both of the parents, the interaction between mental health professionals and family law can present difficulties.  The purpose of this blog is to, very briefly, highlight the most common issues which I encounter when acting for clients.  Many of them arise because of the specialist knowledge my firm has around mental health and the resultant strategies we employ for the benefit of our clients.

1.    Psychiatrist or psychologist: There are fundamental differences between their, respective, roles.  Accordingly, their expertise, as mental health professionals and credibility as a witness are at stake in ensuring that a mental health professional, with the right skill set, is appointed as the court’s expert.

2.    Adult and/or child psychiatrist/psychologist: This issue is more likely to concern a psychologist rather than a psychiatrist, particularly where there are adult and children issues to be reported on e.g. impact of parental conflict/capacity, neuro diversity, and clinical mental health on the entire family.  However, there may be cases where both types of mental professional need to be involved and at both the adult and child level.  Again issues of expertise and credibility are at stake.

3.    Do they need to be “forensic” mental health professionals: Notwithstanding the misguided wish of other law firms/judges to weaponise issues of blame around mental health, by equating “forensic” with “robust” or “thorough”, any mental health professional who is qualified to act as a court-appointed expert, meets the description of “forensic”, whether or not it appears in their professional title.

4.    Identifying appropriate proposed experts: Sensibly, the rules provide for a nominated court-appointed mental health professional to be sent sufficient information, to ensure that they have the necessary skill set to act.  In an environment of blame and suspicion, on more than one occasion, I have experienced opposition from my opponents and judges, who have had the misguided concern, that such information could influence the expert.  They forget that the expert cannot be influenced because of their different skill set, their independence and primary duty to the court and ability to be cross examined.  I suspect, such paranoia, which expresses itself in other issues covered by this blog, must have more to do with the disparity between this firm’s knowledge and theirs’ because of these safeguards. 

5.    Should court-appointed mental health professionals, once appointed, be sent the hearing bundle as part of their assessment.  They typically are; but, strictly speaking, they never should be!  The entire culture and process of assessing an individual’s mental health and its impact differs as between the medical profession and the family justice system.  The “hierarchy” of diagnostic information on which mental health professionals rely, is different to the information which lawyers believe to be relevant.  Prior to judgement, the risk of providing the hearing bundle concerns the possible influence/bias and a breach of the axioms of mental health diagnostic assessment.  After judgement, the danger is that the mental health professional simply pathologises the parent on the basis of judicial findings of fact, again, contrary to mental health axioms, diagnostic assessment principles and the independence of the court-appointed expert. 

6.    The need for written evidence to be provided to the court-appointed mental health professional prior to assessment: Notwithstanding the previous two points, on balance, I am in favour of the court-appointed mental health professional seeing the evidence of both parties, prior to assessment (something which I seem to have been responsible for suggesting to the family courts).  Until a psychiatric or psychological test exists for ascertaining whether the individual to be assessed is lying, any assessment will, to a greater or lesser degree, depend upon the self-serving nature of an individual’s reporting at the assessment meeting.  More often than not, the individual has not volunteered to be assessed and is fully aware of what is at stake with a negative report.

7.    The instructions, written questions and cross examination of the expert can only be as good as the knowledge behind them: Quite simply, if the family lawyer does not have an in-depth knowledge of mental health, they cannot properly instruct, submit written questions to or brief the barrister to cross examine court-appointed mental health professionals in the witness box.  As this firm possesses in-house mental health expertise, not only do we succeed in validating our client’s case through mental health professionals we appoint, or undermine an adverse mental health report, if necessary, but we are able to use written questions and the cross examination process to obtain confirmation of certain fundamental non-legal aspects of our clients’ case.

8.    It’s all about the pricetag!:  The rules which require the court to cap the fees of a court-appointed mental health professional, in the order appointing them (prior to receiving the letter of instruction and the hearing bundle) makes no sense at all.  Acting as a court-appointed expert is a “volume business” and, accordingly, they are not going to work more hours than they are paid.  By the time of the hearing, the expert may only be able to charge his daily attendance rate, even though several months have passed since they last looked through the hearing bundle.  A failure to know the hearing bundle, beyond their reporting, may result in barristers seeking to attack the credibility of the mental health professional’s report based on hesitant answers in the witness box, particularly where the barrister is improperly seeking to cross examine a parent’s case through the expert, rather than requesting that the parent is recalled to give further evidence.

9.    Communicating with the court-appointed expert: Threatened by this firm’s knowledge of mental health, the opposition will do anything to try to prevent the client or this firm from providing the expert with important information during the assessment process, whether that be by email or through the written questions.  Notwithstanding that this is objected to in every case, no opposition lawyer has ever found any legal principle to support their insistence that such correspondence or written questions have to be agreed by them, for fear that the court-appointed expert may be influenced.  The rules, themselves, provide that the only obligation, with respect to written questions to the expert, are that they must be copied to the other side.  The rules are silent as to any post instruction correspondence.  That being said, it is good practice to copy in the other side.  The main reason given by my opponents i.e. fear of the expert being influenced, makes no sense at all in view of their different skill set, and the fact that the rules make it clear they are independent and owe their primary duty to the court.  My opponents also fail to understand that there are many opportunities for each parent to put their subjective, naturally biased and “unagreed” position to the expert, as it will be set out in their evidence and communicated to them at the assessment meeting.   

Such resistance to common sense, through an insistence that all communication with the court-appointed expert needs to be agreed, can lead to the most absurd conflicts of interest e.g. the London law firm who believed that my communication with a forensic accountant, pointing out how the husband had been defrauding his company (something which the forensic accountant would not have been aware of without the background information which the wife had) had to be agreed with them.  It also means that these extremely experienced professionals are trusted less than Cafcass where both parties to the litigation commonly communicate with the Cafcass officer without “agreeing” the narrative of their own case with the other side e.g. in the phone calls and meetings which lead to the schedule 2 letter and section 7 report.  Cafcass are trusted to separate the chaff from the wheat.

10.  Contents of the hearing bundle: Another way in which my opponents seek to close down our strategies based on an expertise in mental health is to seek to prevent relevant correspondence from being contained in the hearing bundle.  In doing so, of course they breach one of the axioms of child welfare, being transparency between professionals-which can literally have life and death implications.  They rely upon the hearing bundle Practice Direction rule, which excludes correspondence in hearing bundles, even though it requires a delusional insistence not to read the caveat to that same rule, that any document can be included in the hearing bundle, if it is going to be specifically referred to in the hearing.

11.  Whether a client should be encouraged to apply for a court-appointed mental health professional: There are many cases (probably the vast majority) where mental health may be a factor in the family litigation but where either the case history or the current symptomology, means that an element of risk is involved in making such an application.  The decision is made all the more difficult because the expert needs to be appointed at the first available opportunity i.e. the FHDRA where there is insufficient information, on which to safely make a decision.  Frequently, the court may “fudge” the issue by asking for a GP letter from the individual concerned.  This “compromise” may result in a delay in formal assessment or inadequate/misleading information on which to decide whether to apply for a court-appointed mental health professional.  The individual’s mental health difficulties may not be known to the GP or they may incorrectly summarise whatever (limited) case history they have, causing additional difficulties by failing to confirm the contents of the missing medical records. 

In deciding whether to make a part 25 application for a court-appointed mental health professional, there are many considerations, some of which are listed below.  Through its combination of skill sets, my firm has an advantage in obtaining evidence relevant to that decision and arriving at the right decision which could have consequences throughout the entire case.  Whilst every case is different, consideration should be given to the following issues in arriving at the decision whether to apply to instruct a court-appointed mental health professional:

• Any prior known diagnoses and/or behaviour which cannot be explained by conflict. Mental health symptomology can look very much like conflict in terms of a lack of empathy, insight, and accountability. Further, the litigation process itself will, inevitably, create anxiety in the litigants.

• Mental health fluctuates over time, so just because the parent has had historic mental health difficulties, does not mean they still do so.

• Whilst an individual’s mental health is often used as a way of weaponising blame, the culture amongst mental health professionals is not to blame the sufferer for their mental health problems nor, in the most extreme cases, concede that pharmacological and/or therapeutic treatment would not benefit them. Sufferers of mental health are treated as deserving of sympathy and are “more than their mental health”.

• Where there is resistance or conflict around issues of mental health, a diagnosis, prognosis and care plan may be less helpful than focusing upon the impact of the individual’s behaviour. The former enables the judge to “quantify” the amount of risk through understanding the cause of the parent’s behaviour and what can be done to ameliorate it. The latter can give rise to a doubt in the judge’s mind that if it is not mental health then “what the hell is it”.

• The general lack of knowledge in the family justice system regarding mental health which may lead to the significance of any psychiatric/psychological report being minimised.

• The fact that, as mental health fluctuates and can depend upon whether the individual is in relapse or remission e.g. in relation to alcohol or drugs, a mental health report can be out of date as soon as it has been prepared or of very limited utility, as an individual may be a very good parent, if they are not consuming alcohol or drugs but a catastrophic one if they are.

12.  Absence of any “baseline”: It is very uncommon for friends or family members, to participate in the assessment process undertaken by a court-appointed psychiatrist or psychologist, thereby depriving them of important information about the individual’s “normal” or “baseline” behaviour and decision-making. Even the social services core assessment questionnaire on alcoholism, gives great weight to whether friends or family of the individual have expressed concern regarding their drinking habits. 

13.  Lack of medical records: These may be lost, located in a different country or omit the results of private mental health assessments which the GP does not know about and, therefore, cannot report on.

14.  Seeing things through the prism of mental health alone: Court appointed mental health professionals are instructed because of their specialist knowledge.  However, like any professional, they will interpret, process, assimilate and report on facts through the prism of their expertise.  Simply because a court-appointed mental health professional understands mental health from a psychiatric or psychological perspective, does not mean that they have any understanding of the dynamics and impact of parental conflict or any other issue which falls outside their area of expertise.

If you have a family law case, which involves mental health professional and have concerns please contact us on (01483) 826 - 470 or using the contact page.