Skip to main content
Report

British Psychological Society publish Guidance

The Guidance serves to highlight the potential implications of the recording of neuropsychological testing in a medico-legal setting.

Introduction

The contentious issue of recording neuropsychological assessments by medico-legal experts was recently examined in the case of MacDonald v Burton [2020] EWHC 906 (QB). The claimant had suffered a serious brain injury. At the case management stage, the defendant sought permission to instruct a neuropsychological expert to examine the claimant and provide a report. The claimant wanted the neuropsychological testing to be recorded and relied on the finding in Mustard v Flower & Ors [2019] EWHC 2623 (QB) where the claimant was permitted to rely on covert recordings made of the defendant’s expert.

The defendant’s expert in MacDonald did not want the testing to be recorded. He felt the recording would affect the dynamic of the assessment and potentially invalidate the results. Mr Justice Spencer decided that the testing should not be recorded but for a different reason: he felt there should be parity between the experts and the parties would not be on a level playing if the defendant’s expert but not the claimant’s expert was recorded. Arguably, this decision could be viewed as some comfort to defendants and defendant practitioners. The ruling came at the time when the British Psychological Society (“BPS”) were in the process of developing guidance on this very issue. It appears for that reason, Mr Justice Spencer desisted from going any further and laying down his own guidelines in his judgment.

The BPS Guidance

The BPS guidance (“the Guidance”) has now been published having been prepared by an Advisory Working Group of the Division of Neuropsychology’s Professional Standards Unit. It is aimed at qualified clinical neuropsychologists. The Guidance serves to highlight the potential implications of the recording of neuropsychological testing in a medico-legal setting.

It is acknowledged that there can be some benefits to the recording of assessments, for instance to clarify any misunderstandings. However, neuropsychologists have expressed concern that recording the testing could, potentially, undermine the validity of the assessment.

The Guidance sets out some key considerations:

  1. Psychologists are expected to provide a reliable and valid evidence-based assessment – the psychologist must ensure that tests are administered in accordance with the instructions provided by the test publishers;
  2. The potential benefit of transparent recording in neuropsychological assessment to assist either the clinical or legal process – recordings can assist with training and professional development;
  3. The presence of a recording device or a third party can influence the claimant’s test performance – video recording has been shown to adversely affect performance on cognitive testing; audio recording has been shown to adversely affect performance on memory testing. Neuropsychological test manuals highlight the need for the test environment to be free from distractions but recording methods/devices may interfere with this;
  4. Neuropsychological tests were not standardised with a recording device or a third party observer present – the validity of the tests may be compromised by the recording as a result;
  5. Recordings could be misused or disseminated more widely – a breach of security could mean recordings find their way into the public domain. This could, in turn, mean claimants could determine their responses to tests before which could undermine and invalidate the test results;
  6. Test materials are subject to copyright laws and are protected in the interest of test publishers – recording the tests may violate copyright laws. 

There is a clear sense from the Guidance that recordings of testing or any part of the neuropsychological assessment process is not advisable. There is also a keen desire on the part of the BPS that recordings are given careful consideration and that parties engage in an open discussion of the issues. The hope expressed is that if the Guidance is followed there will be minimal intervention of the court.

But how likely is this given the views expressed by Mr Justice Spencer in MacDonald and what does the Guidance mean for claimant and defendant practitioners alike? On the one hand, it is hard to see how a court would go behind the Guidance. However, the recording of testing is likely to remain a thorny issue between the expert neuropsychologists and the judiciary. Mr Justice Spencer’s decision not to allow a recording was based on the principle of parity between the parties rather than concerns now outlined in the Guidance. He said he would be ‘disappointed’ if the Guidance provided for a blanket ban on recordings and that recordings could be put to useful purpose in medico-legal cases as a means of weeding out incompetent experts. This scenario is clearly not catered for in the Guidance.

Similarly, it is hard to envisage an expert neuropsychologist departing from the Guidance of his/her professional body and in cases where a claimant/defendant practitioner feels that a recording of the testing is appropriate, there is likely to be long-standing debate as to when the benefits of recordings outweigh the risks for some time to come.

For more information on the guidance published by the British Psychological Society, contact our catastrophic injury solicitors.

Share on Twitter