The Neuropsychologist – August 2016
A brief primer of medico-legal literature and a review of Writing Medico-Legal Reports in Civil Claims: An Essential Guide (2nd Edition) by Eyre and Alexander (2015)
Medico-legal training is not a core part of clinical psychology training and indeed the the clinical approach is very different to the medico-legal approach. Whereas the former is supportive of the patient, deals with clinical issues, and emphasises positive or potentially positive outcomes, the latter deals with med-ico-legal issues, is an independent assessment of the claimant, and assesses likely outcomes objectively.
For those interested in working in the medico-legal field, Eyre and Alexander’s sec-ond edition of their book Writing Medico-Legal Reports in Civil Claims – an Essential Guide is a useful book. The authors highlight the The Neuropsychologist 2 -August 2016 Test and book reviews importance of experts clearly applying the civil standard of proof and appropriate legal tests to the evidence such as ‘on the balance of probabilities’. The emphasis is on develop-ing an understanding of the importance of thinking in a legal manner, crucial in medi-co-legal cases where using the word ‘possibly’ versus ‘probably’ can mean the difference between someone receiving an award or not. As the authors note, in order to be awarded damages, the claimant has to show that there is more than a 50 per cent chance (i.e. on the balance of probabilities) that the accident or adverse event did cause the injuries (p.155).
There are other examples such ‘accelera-tion’ and ‘exacerbation’. Acceleration would require that the injuries, symptoms and effects that the claimant suffered as a result of the accident are exactly the same as those that the claimant would have suffered in the absence of the accident, but are experienced earlier as a result of the accident. Exacerbation requires that the injuries, symptoms and effects that the claimant suffered as a result of the accident are of exactly the same type as those the claimant would have suffered in the absence of the accident, but are now more severe as a result of the accident. Once again these are not topics of which neuropsychologists in clin-ical practice would necessarily be aware.
The medico-legal setting is constantly changing. As Eyre and Alexander note, reforms in the civil justice system have led to an array of changes to the way litigation is con-ducted in England and Wales between 2013-2015. This relates to the ‘Jackson Reforms’ – further guidance on the drafting of joint statements, mental capacity and malingering. Mental capacity is both an important topic in the clinical setting and in medico-legal cases. The authors outline the Mental Capacity Act 2005 and note how the expert needs to reason through a series of questions in order to pro-vide an opinion, on the balance of probabil-ities, as to whether the claimant has capacity in relation to particular decision. The authors discuss ‘dependent capacity’ which refers to claimants being considered to retain capacity if, but only if, assisted and supported by family or professional helpers. The expert would need to address the need, i.e. the nature and extent, because a claim for family and/ or professional assistance might be made (p.253).
Eyre and Alexander cover the topic of clinical negligence including the legal test (the Bolam Test) which they succinctly express as ‘no reasonably competent clinician would have acted (or would have failed to act) in this man-ner’ (p.260). Whilst neuropsychologists would predominantly comment on condition (consequences of negligent treatment) rather than causation in medical negligence cases there may be some instances in which neuropsy-chologists would be required to comment on causation e.g. a case of negligent neuropsycho-logical treatment leading to symptoms.
From a practical writing perspective, Alexander, a communications skills consultant, writes about approaches to expert report structures, and the logical approach to writing an expert report. Addressing the standard of proof and relevant legal tests are emphasised in relation to the written report, and there are report templates in an Appendix. What marks this chapter out are the linguistic approaches such the importance of owning an opinion, and how this expression can communicate how strongly an expert feels about their opinion. It is recommended that first person singular is used i.e. ‘In my opinion .. .’ (p.327). This is an approach that clinicians may not typically use in a treatment setting.
Eyre and Alexander’s book is unique insofar as it is the first medico-legal book in the UK to cover legal principles for experts. Their book is extremely practical and is an important contribution to medico-legal literature in the UK.
Mr Daniel Friedland
Consultant Clinical Psychologist/ Neuropsychologist