Many psychologists practicing in the field of neuropsychology do medico-legal work relating to motor vehicle accidents. Dr Henk Swanepoel and Prof Esme van Rensburg looked into what attorneys and advocates have to say about the expectations of the court regarding this work. The following summary was kindly sent by Dr Swanepoel for this website.
Expectations of the court as viewed by attorneys and advocates with regard to neuropsychological evaluations in motor vehicle accident claims in South Africa
Dr Henk Swanepoel & Prof Esme van Rensburg
School for Psycho-social Behavioural Sciences, North-West University, Potchefstroom Campus, South Africa
Presented at the PsySSA Congress – September 2019
Context of the study: Forensic Neuropsychology applies neuropsychological principles and practices to matters that pertain to legal decision-making. Forensic neuropsychologists must provide the trier of fact with specialised information regarding brain-behavior relationships. The duty of the forensic neuropsychologist is to provide information based on scientifically-validated neuropsychological principles and clinical methodology that is pertinent to the “forensic question” at hand. Not just whether the patient has dysfunction, but whether the dysfunction results from the event/accident under consideration. Commonly, a battery of tests is used to assess neuro-cognitive functions in order to answer the “forensic question”. In South Africa there is no formal training programs, licensure requirements, or professional organizations devoted specifically to forensic neuropsychology. Many psychologists over night decide that they are neuropsychologists. Letterheads are changed to include “special interest in neuropsychology” and somehow that qualifies them. Deciding on the format of evaluation is made by the clinician based on his or her level of experience or university training, and not specialized training. The general trend is for practitioners to attend conferences, participate in Continued Professional Development (CPD) training or formal training overseas. This is completely driven by the individual and the knowledge base is not unified.This results in poor quality of work due to limited training, which results in frustration from legal professionals. The only option for clinicians is to individually determine the court’s expectations as well as the prescribed methodology of neuropsychological evaluations. Non statutory organisations have presented several talks and workshops in an attempt to train professionals in the legal context, however to date no exclusive model for South African psychologists is available which explains legal expectations. There is no consensus between forensic neuropsychologists as to what the courts expect from a forensic neuropsychologist as an expert in South Africa. This results in unnecessary legal criticism about forensic neuropsychological evaluations. The above stated sets the stage for the study in collaboration with the North-West University, Potchefstroom, South Africa. Twenty-six experienced legal practitioners (attorneys, advocates and 2 acting judges) were interviewed to determine the South African court’s expectations regarding forensic neuropsychological evaluations of claims in motor vehicle accidents. They were selected in the Gauteng and North West province and were identified by means of a list available at the High Court indicating which practitioners work in the context of motor vehicle accident claims. As part of inclusion criteria they had to be proficient in English or Afrikaans and have at least 10 years’ experience of matters arising from motor vehicle accident claims. These legal professional expectations’ were explored by means of semi structured interviews which were guided by the research topic. Interviews were audio recorded and verbatim transcribed. The interview was guided by the question:
What is your expectations of neuropsychological evaluation and reports in motor vehicle accident claims?
Data analysis was done by means of thematic analysis. The study elicited 4 themes:
Theme 1: Legal practitioners indicated that forensic neuropsychologists must be clear in evaluation findings to provide an understandable psychological prognosis (an explanation of the difference between pre- and post-morbid functioning) for the legal practitioner to determine loss of earnings. Emphasis is put on the effort that must be undertaken by the forensic neuropsychologist to ensure that the deference between pre- and post-morbid clinical pictures are clearly highlighted. There is also an expectation for a diagnostic finding (DSM5 diagnosis) together with quantification of the proposed psychological treatment.
Theme 2: A need for a clear link between collateral findings and the neuropsychological picture is also reported. Therefore, a link must be made between collateral information (e.g. medical records of other expert reports) and the clinical picture identified during the neuropsychological evaluation.
Theme 3: Referring to the report format the legal professionals indicated specific feedback regarding their requirements. They were outspoken about three themes in this context, namely the structure of the report; length of the report as well as the test descriptions.
Regarding report structure the legal representatives insisted on a logical flow of a report. However, due to the lack of formalized training some reports were reported to be very confusing, e.g. unclear findings and conclusions. Referring to standardized norms, lawyers added that this results in confusion because sometimes norms are not explained. The request was to clearly indicate if the findings provided any value to the clinical picture. Furthermore, it was indicated that findings need to be explained in context of a test or tests. Referring to measuring instruments and the reporting thereof, the legal professionals indicated that it is more understandable if both are grouped together, because if separated they tend to be confused as to what the tests were supposed to measure. Often explaining the test involves the use of technical terms, which confuses the legal reader. It was also indicated that there is too much focus on the test results and too little elaboration on the behavioural implications of injuries. Legal practitioners were ambivalent towards the length of the forensic neuropsychological reports. Some are of the view that the length is excessive, and at times frustrating. The length is due to unnecessary repetition. The request was to get to the point quicker. Other legal practitioners were indifferent to the length of the report because it is read to find the answer to the “forensic question”.
Theme 4: Legal practitioners indicated that it would be helpful for psychologists to have basic training into the legal process of claims. This will create some continuity when psychologists have to provide joint minutes and/or provide expert testimony.
Conclusion: The findings provide the opportunity to understand the complexity of claims and the expectations of the court from forensic neuropsychologists in South Africa. Limited training or the lack of training is something that needs to be taken to heart in the training of future forensic neuropsychologists. Tertiary institutions have approved training in the category of neuropsychology, but the forensic psychology option has not been finalized. Based on the findings there is a great need for training in Forensic Neuropsychology. Therefore, a model of standard requirements for forensic / neuropsychological reports must be created. South Africa still has a long way to go, however, the merging of the principles of forensic neuropsychology and the courts assist with a clearer understanding of legal expectations. This study indicates that forensic neuropsychological practitioners have a lot of value to provide to the South Africa courts, however they need specialized training in order to satisfy the expectations of the court.