Writing Reports for Court: A Practical Guide for Psychologists Working in Forensic Contexts

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Author: Jack White | Andrew Day | Louisa Hackett

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Featuring numerous case studies to illustrate the applicability of the information provided, this book serves as an excellent text for all psychologists considering a career in forensic work as well as any working psychologist who may find themselves in a court setting.

The book achieves a fine balance between the need to be at once comprehensive and practical. If readers adhere to the sage advice contained in this book it will leave little room for judges to complain about the quality of psychological reports as they often have been justified in doing so in the past. James R. P. Ogloff, Professor of Clinical Forensic Psychology and Director, Centre for Behavioural Science, Monash University

logists e for Psycho id u G l a c ti c A Pra

Working in Forensic Contexts

www. AUSTRALIAN ACADEMIC PRESS

.com

WRITING REPORTS FOR COURT

This text examines relevant mental health state legislation relating to criminal, civil and family courts and then sets out a logical structure for writing reports for such matters. The use of psychological tests and their utility in providing useful objective data for courts is also examined. Three chapters are devoted to questions central to an expert offering an ‘opinion’ in court.

A Practical Guide for Psychologists Working in Forensic Contexts Jack White, Andrew Day and Louisa Hackett

Writing Reports for Court: A Practical Guide for Psychologists Working in Forensic Contexts is an invaluable aid for psychologists working in the legal system. The credibility of a psychologist called upon to prepare a report for court as an expert witness will be questioned if the document presented is viewed as poor. The court will place little weight on the report and the psychologist’s professional reputation will be placed at risk. Complaints against psychologists to registration boards, ethics committees and litigation proceedings are frequently the consequence of poor psychological reports.

WRITING REPORTS FOR COURT gists for Psycholo e id u G l a c ti A Prac


Jack White, Andrew Day and Louisa Hackett

WRITING REPORTS FOR COURT ologists uide for Psych A Practical G



First published in 2007 by Australian Academic Press 32 Jeays Street Bowen Hills QLD 4006 Australia www.australianacademicpress.com.au © 2007 Jack White, Andrew Day and Louisa Hackett Reprinted in 2008 Copying for educational purposes The Australian Copyright Act 1968 (Cwlth) allows a maximum of one chapter or 10% of this book, whichever is the greater, to be reproduced and/or communicated by any educationalinstitution for its educational purposes provided that the educational institution (or the body that administers it) has given a remuneration notice to Copyright Agency Limited (CAL) under the Act. For details of the CAL licence for educational institutions contact: Copyright Agency Limited, 19/157 Liverpool Street, Sydney, NSW 2000. E-mail [email protected] Production and communication for other purposes Except as permitted under the Act, for example a fair dealing for the purposes of study, research, criticism or review, no part of this book may be reproduced, stored in a retrieval system, or transmitted in any form or by any means electronic, mechanical, photocopying, recording or otherwise without prior written permission of the publisher. National Library of Australia Cataloguing-in-Publication data: White, Jack, 1955- . Writing reports for court : a practical guide for psychologists working in forensic contexts. 1st ed. Bibliography. eBook ISBN 9781921513084 1. Evidence, Expert - Australia. 2. Report writing. 3. Forensic psychology. 4. Criminal psychology. I. Day, Andrew. II. Hackett, Louisa. III. Title. 614.1 ii

foreword

P

erhaps it was a coincidence. At the same time I was reading a draft of Writing Reports for the Courts: A Practical Guide for Psychologists Working in Forensic Contexts, I was in Brisbane and read an article in the local newspaper with a headline ‘Judge Blasts Psych Reports as Waste of Money’ (Keim, 2007). In the article, a judge complained about the quality of psychological reports she received, expressing a concern that they were ‘mostly a waste of taxpayer dollars’. The judge took an extreme view, and my first inclination was to be defensive. On reflection, though, all too often when I read court reports my views are consistent with those expressed by Her Honour. This reflects a sad state of affairs, and we must improve our standards. We are fortunate indeed, given the quality of reports that sometimes make their way to the courts, that Jack White, Andrew Day and Louise Hackett have prepared this excellent volume. It is sure to make an important contribution to the preparation and presentation of psychological reports for the court. Psychology has come a long way in a (relatively) short time. It was not too long ago that psychologists were not permitted to prepare independent reports for the courts. In some states, courts still debate matters, including whether psychologists can give opinions about whether an accused satisfies the state’s ‘insanity’ defence. Over time, though, the practice has changed and it is now the case that several thousand independent expert reports are submitted to the courts by psychologists in Australia annually. Reading decisions and sentencing comments, it is the fact that many of the reports influence the courts’ decisions. Writing Reports for the Courts is written to provide psychologists with information needed to prepare a report in either criminal or civil matters. In addition, information is provided about preparing reports in family court matters. The book is a quick and easy read. It is written in a very practical way that provides clear information to the reader. After providing an introduction to relevant information concerning Australian law, the authors lead the reader through the various sections that are to appear in a psychological court report. This information includes both historical/demographic information, as well as psychological information. Attention is paid to psychometric test results and how they should be incorporated into a report. In my experience, the approach taken in the book is consistent with the approach taken in Australian courts. Fortunately, though, the overview and approach is more comprehensive and systematic than one often sees in court reports. Hopefully, their approach will continue to enhance the standards of court reports emanating from the growing discipline of forensic psychology. With respect to criminal topics, information is provided regarding the cautions a person is read when being questioned by the police, fitness to stand iii

trial, mental impairment or mental competence, sentencing, and some other issues. In the civil compensation area, attention is paid to the investigations and assessment that the psychologist must undertake in order to provide the court with information regarding the plaintiff’s psychological condition and the extent to which an accident or other trauma may have contributed to it. Again, the approach is systematic, straightforward, and sensible. The book is enriched considerably by the generous use of excerpts from sample court reports, as well as examples of relevant court judgments. Readers will benefit from the information provided. The addition of practical examples provides the reader with so much more than an abstract academic discussion could hope to fulfil. Far from demanding a rigid format, the authors’ use of guidelines and examples provides enough information for psychologists to adopt a method and format that suits their own style, while ensuring the reports will still be of use to the courts. Beyond the preparation of the court report, the book also provides considerable information and practical advice to the psychologist who will be attending court as an expert witness. This information would be very helpful to those who are appearing in court for the first time and it would provide some helpful information even for those who may have appeared as an expert on several occasions in the past. Rounding out the book is a helpful glossary of psychological tests relevant to the forensic context. The appendices provide information about the range of offender rehabilitation programs available in Australia, and an appendix contains the family court expert evidence rules, which are models that will surely be adopted by other courts. To be sure, the book is aimed directly at those preparing court reports and going to court. While it is no substitute for the substantive expertise on which court reports and expert evidence must be based, the book does provide many helpful references and links for the reader who requires greater familiarisation with a particular area. It is not a handbook or tome; rather, as the title states, it is a ‘practical guide for psychologists working in forensic contexts’. We owe a debt of gratitude to Jack White, Andrew Day, and Louise Hackett for their excellent effort in providing what will surely become essential reading material for forensic psychology courses throughout Australia. In addition, the book would be particularly useful for the many individuals who enter forensic psychology practice with relatively little formal training in the law or forensic psychology. The book achieves a fine balance between the need to be at once comprehensive and practical. If readers adhere to the sage advice contained in this book it will leave little room for judges to complain about the quality of psychological reports as they often have been justified in doing so in the past. James R. P. Ogloff, J.D., Ph.D., F.A.P.S. Professor of Clinical Forensic Psychology and Director, Centre for Behavioural Science, Monash University Director of Psychological Services, Victorian Institute of Forensic Mental Health

iv

contents Foreword..........................................................................................

iii

Acknowledgments ...................................................................... vii About the Authors ...................................................................... viii Chapter 1 Introduction .....................................................................................

1

Chapter 2 Australian Legislation .....................................................................

9

Chapter 3 The Court Report Structure............................................................. 31

Chapter 4 Addressing the Legal Issues............................................................ 49

Chapter 5 Civil Compensation Issues .............................................................. 85

Chapter 6 Family Court Matters ...................................................................... 113

Chapter 7 Issues Regarding Malingering......................................................... 121

v

contents (continued)

Chapter 8 Going to Court as an Expert Witness.............................................. 133

Appendixes APPENDIX 1 Offender Rehabilitation Programs in Australia .............................. 137 APPENDIX 2 Family Court Guidelines for Expert Evidence................................ 141

Glossary Glossary of Psychological Tests ..................................................... 155

References....................................................................................... 191

vi

Acknowledgments We would like to thank Andrew Barnes, Judge Gordon Barrett, Professor Rick Sarre and Professor Kevin Howells for their assistance in the preparation of this book.

vii

About the Authors Jack White is chair of the Australian Psychological Society College of Forensic Psychology (SA), works in private practice and teaches in the forensic masters program at the University of South Australia. Andrew Day is Associate Research Professor with the Forensic Psychology Research Group at the University of South Australia. Louisa Hackett works as a researcher with the Forensic Psychology Research Group at the University of South Australia, and Senior Clinical Psychologist with Forensic Mental Health Services in South Australia.

viii

chapter

1

Introduction

W

e have written this book to assist the psychologist when they are asked to prepare a report for court as an expert witness. The usual outcome of any psychological assessment prepared for legal purposes is a written report. This document is the most important way in which the psychologist communicates with the court as this is what is submitted as evidence. The credibility of an expert and their associated profession are under public scrutiny through the court report, and if the psychologist offers a poor quality document this may have negative implications, not only for the individual expert but also for the profession as a whole. The consequences of an unprofessional report are not only that the court places little weight on it, but also that the psychologist’s career and professional reputation may be at risk. Complaints against psychologists to registration boards, ethics committees and litigation proceedings are frequently the consequence of poor psychological reports. During psychologists’ education and training, much emphasis is placed on how they are to set out research reports such that there is absolute adherence to a well-defined and rigid structure. This ensures there is some level of quality control in structure, if not content. The American Psychological Association (APA) publishes a regular update of the specifications for this structure — recognised as the standard throughout the scientific world for publishing articles. We suggest in this book that there is also a need for similar guidelines to assist with the preparation of psychological reports for court. The first stage in preparing a report is to ensure that relevant issues are addressed. This involves identifying and examining the relevant legislation that will provide the definition and direction for the report. Although often very similar, the Australian states and territories each have their own legislation. In chapter 2 we outline the mental impairment legislation for the respective states and territories and legislative guidelines that relate to criminal, civil and family court matters. We argue that it is 1

WRITING REPORTS FOR COURTS: PSYCHOLOGISTS WORKING IN FORENSIC CONTEXT

necessary for the report writer to be familiar with legislation that is specific to the jurisdiction in which they work. In chapter 3, we consider the logical structure needed in writing reports and propose an approach that satisfies that structure. The use of psychological tests is examined and their utility in providing useful objective data for the courts. Chapters 4, 5 and 6 consider the questions that are central to an expert offering an ‘opinion’ in criminal, civil and family court matters and outline an approach for addressing these questions. We use case examples to illustrate this approach. Chapter 7 discusses the assessment of malingering in forensic contexts, and in chapter 8 we consider the expert as a witness in the court and discusses how a psychologist might best prepare for that task. Chapter 9 contains a glossary of some of the most commonly used psychological tests in forensic assessment. Finally, an overview of correctional rehabilitation programs in Australia is included in Appendix 1, with the family court expert evidence guidelines reproduced in Appendix 2. However, we will begin by considering the different roles that the psychologist might play in the legal process.

The Role of the Psychologist in the Legal Process A court report differs from a clinical report (which may describe the nature of contact between a client and a mental health professional) in that the issues that are addressed are those that are relevant to the legal case. Whereas in mental health settings the client is primarily the individual being assessed, in forensic settings the client is the court. The court report is not a confidential document and it is important that the client knows that anything she or he tells the assessor may be included. The client will usually receive a copy of the report and it is of no benefit to anyone if they then state that the information in it is inaccurate or untrue. Of course no report writer will ever know the ‘truth’ of the material provided, and can only provide an accurate record of what was reported by the client in the assessment. Typically psychologists give opinions only on people they have personally assessed, but may, under some circumstances, conduct a record review or otherwise give an opinion. It is generally agreed that those involved with the care and treatment of an individual should not undertake psychological assessment for court. Greenberg and Shuman (1997) have argued that the roles of the assessor and the treating practitioner are so different that they should not be combined (see Table 1.1). They suggest that treating practitioners should refrain from offering legal opinion (restricting themselves in legal settings to acting solely as witnesses of fact), and that practitioners who undertake evaluative roles for the courts should not subsequently make themselves available for therapeutic work. This is not to say that a practitioner cannot carry out these distinct roles with separate individuals 2

Table 1.1

Diagnostic criteria for the purpose of therapy Mostly based on information from the person being treated with little scrutiny of that information by the therapist Therapist attempts to benefit the patient by working within the therapeutic relationship A helping relationship; rarely adversarial Therapist attempts to benefit the patient by working within the therapeutic relationship

5. The nature of hypotheses tested by each expert

6. The scrutiny applied to the information utilized in the process and the role of historical truth

7. The amount and control of structure in each relationship

8. The nature and degree of ‘adversarialness’ in each relationship

9. The goal of the professional in each relationship

Note: The term ‘attorney’ is used in the United States to refer to a lawyer.

The basis of the relationship is the therapeutic alliance and critical judgment is likely to impair that alliance

Therapy techniques for treatment of the impairment

4. The differing areas of competency of each expert

10. The impact on each relationship of critical judgment by the expert

Supportive, accepting, empathic

Therapist–patient privilege

2. The relational privilege that governs disclosure in each relationship

3. The cognitive set and evaluative attitude of each expert

The mental health practitioner

1. Whose client is the patient/litigant?

Care provision

The basis of the relationship is evaluative and critical judgment is unlikely to cause serious emotional harm

Evaluator advocates for the results and implications of the evaluator for the benefit of the court

An evaluative relationship; frequently adversarial

Evaluator advocates for the results and implications of the evaluation for the benefit of the court

Litigant information supplemented with that of collateral sources and scrutinized by the evaluator and the court

Psycho-legal criteria for purpose of legal adjudication

Forensic evaluation techniques relevant to the legal claim

Neutral, objective, detached

Attorney–client and attorney work–product privilege

The attorney

Forensic evaluation

Differences Between Therapeutic and Forensic Relationships (Adapted From Greenberg & Shuman, 1997)

INTRODUCTION

3


(that is they may provide treatment to some individuals and may evaluate others) rather that it is unadvisable, and probably unethical, to take on both roles with the same individual. The APA Guidelines of Child Custody Evaluations in Divorce Proceedings (APA, 1994) support this position, stating that it is generally forbidden to move from a treatment to an evaluation relationship for children involved in custody disputes. Of course, in practice, things are not always clearcut. Sometimes clients are involved in litigation when they enter therapy. At other times they instigate legal proceedings shortly after entering therapy. For example, a person seeking therapy to deal with the consequences of childhood sexual abuse may decide to make a criminal injuries claim after understanding more about the impact of the abuse on their ability to function. It is important that such clients are aware that the confidentiality of their sessions may be compromised if their mental health is raised as an issue relevant to any litigation. Psychologists should try to identify these clients early by asking at the beginning of treatment if clients are, or are likely to become, involved in litigation. We believe that it is important for forensic practitioners to understand this distinction between therapeutic and evaluative roles as it outlines clear boundaries in their work with clients for whom a court report is requested. It helps to clarify the nature of client-practitioner relationships and overcomes any criticisms of partisanship that may undermine professionalism. We also note that information such as that in Table 1.1 is often cited in cross-examinations of psychological reports submitted to North American courts in cases where therapeutic and evaluative roles appear to be blurred. In the words of Greenberg and Shuman (1997) ‘(B)y failing to recognise the … conflicting therapeutic and forensic roles, psychologists, psychiatrists and other mental health professionals risk harm to their profession, their patients, and the courts’ (p. 56). There is no reason to believe that similar arguments will not be used in Australian courts. Therefore we suggest that one of the first matters to consider in preparing a report for court is the role that the psychologist is playing. Our own experience of working in clinical and forensic settings has shown that evaluative and therapeutic roles are rarely adequately separated, leading to a wide variability of the quality and utility of reports submitted to the courts.

Difference Between an Expert Witness and a Witness of Fact An expert witness is a witness who is recognised by the court as a person who can give an opinion in a specific area of knowledge that the court determines is outside the understanding of an average person. In Australia, the court has determined that psychology is a scientific discipline about which the average person may not have adequate understanding. A psychologist can be 4

INTRODUCTION

an expert witness if the court acknowledges that they have the relevant qualifications, training and experience in the area of psychology. The psychologist’s status as an expert must be determined by the court before they can offer an opinion, and this status may be contested — especially in situations where the applicant has limited experience. In order to establish expertise the psychologist will usually present the court with their curriculum vitae. This will contain details of academic qualifications, registration details, professional affiliations, employment background, academic appointments, clinical appointments, past experience as an expert in the court, and a listing of publications, scientific papers, presentations and workshops. In court, the psychologist may be challenged about their expertise and it will then be the decision of the judge as to whether or not the psychologist is accepted as an expert. In normal court proceedings witnesses are not permitted to offer opinions, rather they are only able to provide evidence about factual matters. Witnesses of fact must limit their evidence to what they have observed. In some cases a psychologist may be called to give evidence in a court as a witness of fact rather than as an expert witness. For example, the psychologist may be the defendant’s treating clinician, in which case the psychologist may provide evidence as to when and how often they had appointments with the defendant and provide details about the defendant’s clinical treatment. The psychologist cannot, however, offer an opinion to the court that may be related to the psycho-legal issues being examined by the court. For many psychologists this distinction may seem unfair, but it is intended to ensure that experts work within their field of expertise and are aware of the legal matters being addressed.

Expert Evidence Guidelines Psychologists have an ethical responsibility to be ‘reasonably familiar’ with the court rules governing their participation. In many jurisdictions the individual expert must meet minimum standards if their evidence is to be accepted by the court. These guidelines are expressed in practice directions. For example, the Supreme Court of South Australia, Practice Direction 46A (quoted below) outlines the requirements for recognition by the court as an expert. Other jurisdictions have their own specific guidelines which, while sharing many similarities with the South Australian example, would need to be consulted before applying for recognition in the courts of other Australian states and territories.

5


SUPREME COURT OF SOUTH AUSTRALIA Practice Direction No. 46A† Guidelines for Expert Witnesses in Proceedings in the Supreme Court of South Australia — Dated 17th May 2002 1. These guidelines apply to all actions in which the pleadings have closed on or after 3 June 2000. 2. These guidelines are not intended to address exhaustively all aspects of an expert’s report and an expert’s duties. 3. These guidelines, however, must be complied with for an expert to comply with r 38.01A(2)(d). 4. General duty to the Court: 4.1

An expert witness has an overriding duty to assist the Court on matters relevant to the expert’s area of expertise.

4.2

An expert witness is not an advocate for a party.

4.3

An expert witness’s paramount duty is to the Court and not to the person retaining the expert.

5. The form of the expert report:

†

6

5.1

An expert’s written report will set out with reasonable particularity all of the qualifications of the expert which are relied upon to qualify the expert to give the report.

5.2

It will set out separately all of the factual findings or assumptions upon which any opinion is based.

5.3

The report will give particulars identifying the material upon which the expert bases his or her expert opinion.

5.4

If any tests or experiments are relied upon by the expert in compil ing the report, the report should contain details of the qualifications if the person who carried out any such tests or experiments.

5.5

Where an expert’s report refers to photographs, plans, calculations, analyses, measurements, survey reports or other extrinsic matter, these must be provided to the opposite party at the same time as the delivery of the report.

5.6

The report should set out separately from the factual findings or assumptions each of the opinions which the expert expresses.

5.7

The expert should give reasons for each opinion.

5.8

If an expert opinion is not fully researched because the expert considers that insufficient data is available — or for any other reason, this must be stated with an indication that the opinion is no more than a provisional one. Where an expert witness who has prepared a report believes that it may be incomplete or inaccurate without some qualification, that qualification must be stated in the report.

5.9

The expert should make it clear when a particular question or issue falls outside his or her field of expertise.

Available online at http://www.courts.sa.gov.au/lawyers/practice_directions/civil_pd/civil_pd_pdfs/civil_pd_46a.pdf Reproduced with the permission of the South Australian Attorney-General, but does not purport to be the offical or authorised version. The South Australian Attorney-General does not accept responsibility for the accuracy of this reproduction.

INTRODUCTION

5.10 The expert’s report will contain an acknowledgement at the commencement of the expert’s report that the expert has been provided with this practice direction prior to preparing the expert’s report and that the expert has read it and understood it. 5.11 At the end of the report the expert should declare that (the expert) has made all the inquiries which ‘(the expert) believes are desirable and appropriate and that no matters of significance which (the expert) regards as relevant have, to (the expert’s) knowledge, been withheld from the Court.’ 6.

The further obligations of an expert and the party retaining the expert: 6.1

If, after exchange of reports or at any other stage, an expert witness changes his or her view on a material matter, having read another expert’s report or for any other reason, the change of view should be communicated in writing (through legal representatives) without delay to each party to whom the expert witness’s report has been provided and, when appropriate, to the Court.

6.2

The party who has retained the expert will, if requested by a party to whom an expert’s report has been delivered, deliver to that party: 6.2.1 A list of all documents which have been referred to, or prepared by or at the direction of the expert in the course of preparing the report. 6.2.2 Copies of any documents in the list delivered pursuant to 6.2.1. 6.2.3 Details of any fee, disbursement or benefit received, or receivable, by the expert or anyone on his or her behalf, for the preparation of the report and for services provided, or to be provided, by the expert or by any one on his or her behalf in connection with the expert giving evidence for the party in the action; 6.2.4 A list of all conversations in which the expert has taken part with any party, any legal representative of a party or any other expert consulted in relation to the matter relevant to the opinions expressed in the report stating when and with whom each such conversation occurred and the topics discussed; 6.2.5 Copies of all notes made by or on behalf of the party or by or on behalf of the expert concerning any of the conversations referred to in a list provided under the previous obligation.

7.

The expert’s evidence: An expert’s evidence in chief at the trial unless the Trial Judge otherwise allows is to be given only by tendering the reports from the expert which comply with r 38 and the expert swearing that the reports are correct.

7


8. Consequences of non disclosure: If a party fails to comply with the Rules of Court or this Practice Direction in respect of an expert’s report:

9.

8.1

The Court may adjourn the hearing or trial at the cost of the party in default or his or her solicitor.

8.2

The Court may direct that evidence from that expert not be adduced by that party at the trial in the action.

8.3

The Trial Judge may award costs to the other parties or reduce costs otherwise to be awarded to the party in default.

8.4

The Trial Judge may take that failure, if it be by a plaintiff, into account in assessing the award of damages to the plaintiff.

Expert’s conference: 9.1

If experts retained by the parties meet at the direction of the Court, or at the request of solicitors for the parties it would be improper conduct for an expert to be given or to accept instructions not to reach agreement. If, at a meeting directed by the Court, the experts cannot reach agreement on matters of expert opinion, they should specify their reasons for being unable to do so.

10. Experts employed by a party to the action: The provisions and requirements of r 38 and this Practice Direction apply to any person called as an expert in the action, even if the expert is employed by a party to the action.

8

chapter

2

Australian Legislation

A

s expert witnesses, psychologists are usually asked to give opinions on matters that are related in some way to the mental health of the defendant in some way. This may be in cases where a person’s mental health (including intellectual ability) may affect their level of responsibility for their behaviour (competency), their understanding of the legal process (fitness), or the reasons why they offended and their likely response to different sentencing options. Each state and territory has its own legislation relevant to mental health. It is essential that those conducting legal assessments are familiar with the legislation of the jurisdiction in which the assessment is conducted.

Mental Impairment Legislation The extent to which someone has a mental impairment may constitute grounds for a legal defence against a charge. The term ‘mental impairment’ has a legal meaning in Australian states and territories, although definitions vary between jurisdictions depending largely on the period in which the legislation was written and the terminology of the time. McSherry (1999) has reviewed the current Australian commonwealth and state legislation as it pertains to the defence of mental impairment or insanity. This defence generally serves to legally excuse an accused offender from criminal responsibility for their conduct because of an inability to know the nature and quality of the conduct or to understand that the conduct was wrong. Such a conception is based on the traditional common law M’Naghten Rules,† the most well known of which states: [T]o establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such defect of reason, from disease of the mind, as not to know the nature and quality of the act he {or she} †

(1843) 10 Cl and Fin 200 at 210, 8 ER 718 at 722, [1843] All ER 229 as cited in McSherry (1999).

9


was doing; or, if he {or she} did know it, that he {or she} did not know he {or she} was doing what was wrong. While there have been some calls to develop uniform legislation across all Australian jurisdictions, it is clear that the states and territories all depart from the model defence as set out in the Criminal Code Act 1995 (Cth), which defines impairment as senility, intellectual disability, mental illness, brain damage, or severe personality disorder, such that the offender did not know the nature and quality of the conduct, did not know that it was wrong, and/or was unable to control the conduct. The current Australian Commonwealth and State legislation with respect to the defence of ‘mental impairment’ is provided in Table 2.1 (adapted from McSherry, 1999).

Legal Definitions of Mental Illness As can be seen in Table 2.1, the term ‘mental illness’ also has a legal meaning that differs across jurisdictions. This is important as any assessment of mental impairment will need to be guided by the legislation relevant to the jurisdiction in which it is conducted. In New South Wales, for example, mental illness is defined as: A condition which seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms: (a) delusions; (b) hallucinations; (c) serious disorder of thought form; (d) a severe disturbance of mood; (e) sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a)–(d). In Queensland, mental illness is a condition characterised by a clinically significant disturbance of thought, mood, perception or memory. However, a person must not be considered to have a mental illness merely because of any one or more of the following: (a) the person holds or refuses to hold a particular religious, cultural, philosophical or political belief or opinion; (b) the person is a member of a particular racial group; (c) the person has a particular economic or social status; (d) the person has a particular sexual preference or sexual orientation; (e) the person engages in sexual promiscuity; (f) the person engages in immoral or indecent conduct; (g) the person takes drugs or alcohol;

10

Table 2.1

Name of defence

Mental impairment s 7.3(1) Criminal Code Act 1995

Mental illness s 428N(1) Crimes Act 1900

Mental illness s25 Mental Health (Criminal Procedure) Act 1990: Special Verdict

Insanity s 35 Criminal Code

Jurisdiction

Commonwealth (CTH)

ACT

NSW

NT

Australian Mental Impairment Legislation

Abnormality of mind arising from a condition of arrested or retarded development of mind or inherent causes of

Defect of reason caused by a disease of the mind

Mental dysfunction defined as a disturbance or defect, to a substantially disabling degree, of perceptual interpretation, comprehension, reasoning, learning, judgment, memory, motivation or emotion s 428B

Senility, intellectual disability, mental illness, brain damage, severe personality disorder s 7.3(8)

Components of mental state

Capacity to understand what he or she was doing

Did not know the nature and quality of the act he or she was doing

Incapable of knowing what he or she was doing s 428N(1)(a)

Did not know the nature and quality of the conduct s 7.3(1)(a)

Nature and quality of conduct

Capacity to know that he or she ought not do the act, makes the omission or cause

Did not know that what he or she was doing was wrong

Incapable of understanding that what he or she was doing was wrong s428N(1)(b)

Did not know that the conduct was wrong s 7.3(1)(b)

Knowledge that conduct is wrong

continued

Capacity to control his or her actions 35(1)

N/A

N/A

Unable to control the conduct s 7.3(1)(c)

Inability to control conduct

AUSTRALIAN LEGISLATION

11

12

Table 2.1 (CONTINUED)


Mental incompetence Ss 269C and 269E Criminal Law Consolidation Act 1995


SA

Tasmania

Name of defence

QLD

(CONT.)

NT

Jurisdiction


Mental disease s 16(1)

Mental impairment includes: Mental illness, intellectual disability or a disability or impairment of the mind resulting from senility s 269A(1)

Mental disease or natural mental infirmity s 27(1)

Induced by disease, illness or injury s 35(1) and 1


Incapable of understanding the physical character of the act or omission 16(1)(a)(i)

Does not know the nature and quality of the conduct s 269C(a)

Capacity to understand what the person is doing s 27(1)


Incapable of knowing that the act or omission was one that he or she ought not to do or make 16(1)(a)(ii)

Does not know that the conduct is wrong s 269C(b)

Capacity to know that the person ought not to do the act or make the omission s 27(1)

the event s 35(1)


continued

The act or omission was done or made under an impulse which he or she was in substance deprived of any power to resist s 16(1)(b)

Is unable to control the conduct s 269C(c)

Capacity to control the person’s actions s 27(1)





WA

Unsoundness of mind: state of mental impairment s 27

Mental impairment No definition s 20 Crimes (Mental Impairment and Fitness to be Tried) Act 1997

Victoria


Name of defence

Jurisdiction


Capacity to understand what he or she is doing s 27

Did not know the nature and quality of the conduct s 20(1)(a)


Capacity to know that he or she ought not to do the act or make the omission

Did not know that the conduct was wrong s 20(1)(b)


Capacity to control his or her actions

N/A



13


(h) (i) (j) (k)

the person has an intellectual disability; the person engages in antisocial behaviour or illegal behaviour; the person is or has been involved in family conflict; the person has previously been treated for mental illness or been subject to involuntary assessment or treatment. Similarly, in Western Australia, a person has a mental illness if the person suffers from a disturbance of thought, mood, volition, perception, orientation or memory that impairs judgment or behaviour to a significant extent. ‘Mental illness’ is defined as an underlying pathological intellectual disability, mental illness, brain damage or infirmity of the mind, whether of short or long duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary stimuli. The term ‘mental impairment’ is reserved to refer to senility. The legislation in other jurisdictions place emphasis on the conduct itself. For example, in the Northern Territory: (1) A person is excused from criminal responsibility for an act, omission or event if, at the time of doing the act, making the omission or causing the event he was in such a state of abnormality of mind as to deprive him of the capacity to understand what he was doing or of capacity to control his actions or of capacity to know that he ought not to do the act, make the omission or cause the event; (2) A person whose mind, at the time of his doing, making or causing an act, omission or event, was affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of the foregoing provisions of this section, is criminally responsible for the act, omission or event to the same extent as if the real state of things had been such as he was induced by the delusion to believe to exist. In Tasmania, a person is not criminally responsible for an act done or an omission made by him: (1) (a) when afflicted with mental disease to such an extent as to render him incapable of: (i) understanding the physical character of such act or omission; or, (ii) knowing that such act or omission was one which he ought not to do or make; or, (b) when such act or omission was done or made under an impulse which, by reason of mental disease, he was in substance deprived of any power to resist.

14


(2) The fact that a person was, at the time at which he is alleged to have done an act or made an omission, incapable of controlling his conduct generally, is relevant to the question whether he did such act or made such omission under an impulse which by reason of mental disease he was in substance deprived of any power to resist. (3) A person whose mind at the time of his doing an act or making an omission is affected by a delusion on some specific matter, but who is not otherwise exempted from criminal responsibility under the foregoing provisions of this section, is criminally responsible for the act or omission to the same extent as if the fact which he was induced by such delusion to believe to exist really existed. (4) For the purpose of this section the term ‘mental disease’ includes natural imbecility. It is clear that the language of legislation in any jurisdiction is very complex, very specific, and often very confusing. Nonetheless, conviction and often imprisonment for an individual may rely on the appropriate interpretation of the relevant legislation by the assessing professional. It is therefore extremely important that psychologists and other professionals generally unfamiliar with legal language become comfortable with the terminology and, most importantly, the intended meaning of these terms.

Presumption of Sanity Some jurisdictions have adopted legislation that presumes defendants are sane. This means that insanity is something that has to be proven. In Queensland, for example, every person is presumed to be of sound mind, and to have been of sound mind at any time, until the contrary is proved. Similarly in Tasmania, every person is presumed to be of sound mind, and to have been of sound mind at any time that comes in question, until the contrary is proved. Commonwealth legislation also specifies the presumption of ‘sanity’, with section 7.3(3) stating that: A person is presumed not to have been suffering from such a mental impairment. The presumption is only displaced if it is proved on the balance of probabilities (by the prosecution or the defence) that the person was suffering from such a mental impairment.

Fitness to Plead and to Stand Trial There is a general principle in law that a person must be deemed fit to be able to both plead and to stand trial. Usually, if a person charged with an offence is found unfit for trial and this unfitness is of a permanent nature, then proceedings against the person for the offence are discontinued and further proceedings are not taken against them.

15


The states and territories also differ in the specific details of legislation concerning an individual’s fitness to plead or fitness to stand trial. Again, as with the legislation concerning mental incompetence at the time of committing an offence, legislative differences across Australian jurisdictions vary more in their precise terminology than in the substantive concepts which they embrace. There are more similarities than differences, as can be seen in Table 2.2, although the Queensland legislation differs notably from the other jurisdictions, in that fitness for trial can only be determined by a specially set up Mental Health Court.

Offender Rehabilitation The legislative basis for offering rehabilitation programs to offenders in Australia also differs between each state and territory. In 2004, Howells, Heseltine, Sarre, Davey and Day, as part of a review of offender rehabilitation programs, invited each jurisdiction to comment on the parliamentary authority underpinning the delivery of rehabilitation.† They found that this changes markedly from jurisdiction to jurisdiction, sometimes appearing in the criminal statutes, sometimes in correctional legislation and sometimes in the various sentencing laws. Howells et al. (2004) concluded that generally speaking those who are responsible for the administration of rehabilitation programs rarely, if ever, refer to current legislation for guidance and that while rehabilitation is used as a justification for, or purpose of, punishment, ‘deserts’-based approaches hold a preeminent place in contemporary Australian sentencing legislation. Not only are there different legislative approaches, there are a variety of models as well. These models range from the virtually nonexistent legislative guidance model, such as that which exists in Victoria, to a specific legislative mandate model such as the guidelines set out in Queensland’s Corrective Services Act 2000. South Australia’s legislature, in yet another approach, has provided a very general administrative fiat, with policy specifics left principally to departmental development. Howells and colleagues noted that much of the terminology is ambiguous or in passive voice, for example, section 5(1)(c) of the Victorian Sentencing Act 1991 states that one of the purposes for which sentences may be imposed is to ‘establish conditions within which it is considered by the court that the rehabilitation of the offender may be facilitated’. In all jurisdictions, other factors (e.g., protection of the community) appear to be given preeminence in sentencing. In South Australia, for example, the Criminal Law (Sentencing) Act 1988 states that one purpose of sentencing is ‘the rehabilitation of the offender’, but it is the thirteenth — section 10(m) — consideration. In Tasmania’s Sentencing Act 1997 (section 3(e)(ii)) rehabilitation is mentioned, but it is secondary to deterrence as a goal. In New South Wales, section 3A(d) of the Crimes (Sentencing Procedure) Act 1999 lists ‘the promotion of †

16

Adapted and reproduced with permission and thanks to Professor Kevin Howells and Professor Rick Sarre. The original is available from the Australian Institute of Criminology web site.

Table 2.2

'(a) understand '(b) plead to (d) understand '(e) follow what is what he or she the charge' generally the nature going on in court is charged with' of proceedings' in a general sense (though not necessarily the purpose of court formalities (f) understand the substantial effect of evidence given against him/her'

Mental Health (Criminal Procedure) Act 1990

'(d) following, in general terms, the course of the proceeding before the court (e) understanding the substantial effect of evidence given against him or her'

Follow proceedings/ understand evidence

NSW

'(b) pleading '(c) understanding to the that the proceeding charge …' … will be an inquiry as to whether or not the person did what he or she is charged with'

Nature of the proceedings

‘(a) understanding what he or she is charged with'

Plead the charge

Mental Health (Treatment and Care) Act s.68

Nature of the charge

ACT

Juris- Act diction

Australian Legislative Criteria Required for a Finding of Fitness to Stand Trial

'(c) exercise his/her right of challenge for jurors'

'(b) … exercising his or her right of challenge'

Exercise procedural rights

'(g) decide what defence he or she will rely on …'

'(f) making a defence to, or answering, the charge (g) deciding what defence he or she will rely on'

Make a defence

'(g) … and make this and his or her version of events known to the court or his or her counsel'

'(h) giving instructions to his or her legal practitioner (if any) (i) making his or her facts known to the court and to his or her legal practitioner'

Instruct lawyer

continued

Exclusions


17

18


(a) to respond 'rationally to the charges or the allegations on which the charge is based'

'(c) understand the nature of the proceedings …’

Criminal Law Consolidation (Mental Health) Act 1995 s.269H

SA

'Fit to plead at the person's trial'

Mental Health Act 2000 s.270, 271

Nature of the proceedings

QLD

Plead the charge

Criminal '(a) understand '(b) unable '(c) understand Code the nature to plead the nature Amendment of the charge' the charge’ of the trial’ Mental Impairment and Unfitness to be Tried Act 2002 D.3 (43J


NT

Juris- Act diction

'(c) … or to follow the evidence or the course of the proceedings’

'(d) follow the course of proceedings (e) understand the substantial effect of any evidence that may be given in support of the prosecution'



'(b) unable to exercise procedural rights'

'(b) … exercise the right of challenge’


Make a defence

To instruct counsel

'(f) give instructions to his or her legal counsel'

Instruct lawyer

continued

'A person is not unfit to stand trial only because he or she suffers from memory loss'

Exclusions



'(c) understand the nature of the trial’

'(b) enter a plea to the charge …'

Crimes '(a) understand (Mental the nature Impairment of the charge' and Unfitness to be Tried) Act 1997 Pt 2 s.6

VIC

Nature of the proceedings '(c) understand the nature of the proceedings'

Plead the charge

Criminal '(a) understand '(b) plead Justice the nature the (Mental of the charge' charge …' Impairment) Act 1999 Part 2 s.8


TAS

Juris- Act diction

'(b) … exercise the right of challenge'

Exercise procedural rights '(e) make a defence or answer the charge'

Make a defence

'(d) follow '(b) … exercise the course the right to of the trial challenge (e) understand jurors or the substantial the jury' effect of evidence that may be given in support of the prosecution'

'(d) follow the course of proceedings’



'(f) to give instructions to his or her legal practitioner'

Instruct lawyer

continued

'A person is not unfit to stand trial only because he or she suffers from memory loss'

'if the only reason that person is unable to make a defence … is that he or she is suffer ing from memory loss'

Exclusions


19

20


WA

Mental Health Act 1996 s.8

Juris- Act diction

'(a) understand the nature of the charge'


'(b) understand the requirement to plead to the charge and the effect of a plea'

Plead the charge

'(c) understand the purpose of a trial'

Nature of the proceedings '(e) follow the course of a trial, (f) understand the substantial effect of evidence presented by the prosecution'


Australian Legislative Criteria Required for a Finding of Fitness to Stand Trial Make a defence

'(d) '(f) properly understand defend or exercise the charge' the right to challenge jurors'


Instruct lawyer

Exclusions



rehabilitation’ as no. 4 in a list of seven considerations. Finally, in Western Australia’s Sentence Administration Act 1995 & 1999, the rare mention of rehabilitation is in relation to parole decisions. What follows is a brief overview of the legislative mandates and guidelines for providing rehabilitation in each jurisdiction.

New South Wales The Crimes Legislation Amendment (Criminal Justice Interventions) Act 2002, Part 9 provides for the recognition and operation of certain programs for dealing with accused persons and offenders, known as ‘intervention programs’. An accused person or offender may be referred for participation in an intervention program at several points in criminal proceedings against the person, as follows: (a) a court that grants bail to a person may impose a condition of bail under section 36A of the Bail Act 1978 that the person enter into an agreement to subject himself or herself to an assessment of capacity and prospects for participation in an intervention program or other program for treatment or rehabilitation (c) a court that finds a person guilty of an offence may make an order requiring the person to participate in an intervention program (and to comply with any plan arising out of the program) under section 10 of the Crimes (Sentencing Procedure) Act 1999 (d) participation in an intervention program (and compliance with any plan arising out of the program) may be made a condition of a good behaviour bond under section 9 or 10 of the Crimes (Sentencing Procedure) Act 1999, or of a suspended sentence under section 12 of that Act (e) sentencing of an offender may be deferred for the purpose of assessing an offender for participation in an intervention program, or for allowing an offender to participate in an intervention program (and to comply with any plan arising out of the program) under section 11 of the Crimes (Sentencing Procedure) Act 1999. Victoria The Corrections Act 1986 and Regulations appear to make no reference to rehabilitative programs at all. The Sentencing Act 1991 has oblique references, cited here. For persons to be eligible for a community-based order, they must abide by the conditions laid down, among others, in section 38 (1)(d): (1) Program conditions of a community-based order are: (d) That the offender undergoes assessment and treatment for alcohol or drug addiction or submits to medical, psychological or psychiatric assessment and treatment as directed by the regional manager.

21


For persons to be eligible for reintegration programs, they must abide by the conditions laid down, among others, in section 18S: (1) The court may attach to a combined custody and treatment order (a) a condition that the offender during the period of the order submit to testing for alcohol or drug use as specified in the order; or (b) any other condition relevant to the offender’s drug or alcohol addiction or usage that the court considers necessary or desirable. (2) A court is not required to attach any program conditions to a combined custody and treatment order. (3) A court must not impose any more program conditions than are necessary to achieve the purpose or purposes for which the order is made. For persons to be eligible for a drug treatment order, they must abide by the conditions laid down, among others, in section 18ZG: (1) The program conditions that may be attached to a drug treatment order are that, while the treatment and supervision part of the order operates, the offender: (a) must submit to drug or alcohol testing as specified in the order; and (b) must submit to detoxification or other treatment specified in the order (whether or not residential in nature); and (c) must attend vocational, educational, employment or other programs as specified in the order; and (d) must submit to medical, psychiatric or psychological treatment as specified in the order. (2) The Drug Court must attach to a drug treatment order at least one program condition but must not attach any more program conditions than it considers necessary to achieve the purposes for which the order is made. (3) An offender must comply with all of the program conditions attached to the drug

Australian Capital Territory In the Australian Capital Territory, the Rehabilitation of Offenders (Interim) Act 2001 and regulations made thereunder govern the provision of rehabilitation services to offenders, insofar as ‘rehabilitation’ is assumed to occur as a part of the availability of home detention and parole. The Act allows for a detainee’s attending personal development activities or counselling or treatment programs with home detention or as a part of parole, as 22


directed by a corrections officer, although rehabilitation programs are not specifically mentioned. The law is written in a way that says that if a program is available as part of home detention or parole, there are directions that participants must abide by. The Act sets out the rules for home detention in section 18(1)(a). Regulation 7 of this Act refers to standard conditions of home detention. Section 7p states: The person must allow contact between (ii) a person conducting an approved activity or program attended by the person. Section 7r states: the person must comply with all reasonable directions of a corrections officer, including, for example, directions about any of the following … (iii) attending or taking part in an approved activity or program. For programs for parolees, reference is made in regulation 8(k) (iv). Other legislation, likewise, makes oblique reference to rehabilitation programs. The Periodic Detention Act 1995, section 15 states The director may, by order, direct a detainee to (a) participate in any activity, attend any class or group or undergo any instruction that the director considers conducive to the detainee’ s welfare or training. The Crimes Act 1900 sections 402 and 403 relate to the conditional release of persons convicted of an offence. The Court can order that the person may be released on specific conditions, for example, treatment. The Crimes Act 1900 section 341(c) specifies that a sentence may be imposed with the specific aim of rehabilitating the offender. The only purposes for which a sentence may be imposed are: (a) to punish the offender to an extent and in a way that is just and appropriate in all the circumstances; or (b) to deter the offender or other persons from committing the same or a similar offence; or (c) to rehabilitate the offender; or (d) to make it clear that the community, acting through the court denounces the type of conduct in which the offender engaged; or (e) to protect the community from the offender; or (f) a combination of 2 or more of the purposes referred to in paragraphs (a) to (e).

23


Queensland The Corrective Services Act 2000, Section 190, specifically addresses the need for offenders programs. This Act specifically gives directions to the CEO to provide services or programs to offenders. More specially, Section 190 (Services and programs to help offenders) states: (1) The chief executive must establish services or programs: (a) for the medical welfare of prisoners; and (b) to help prisoners to be integrated into the community after their release from custody, including by acquiring skills; and (c) to initiate, maintain and strengthen ties between offenders and members of their families and the community; and (d) to help counsel offenders who are subject to community based orders. (2) The services and programs must take into account the special needs of offenders. The Department of Corrective Services in Queensland incorporated this legislative framework into a policy document, entitled ‘Offender Programs’.

South Australia The Department of Correctional Services offender rehabilitation operates in accordance with the Correctional Services Act 1982, Section 23 (6) After the first assessment of a prisoner has been completed, the chief executive officer must prepare a programme in relation to the prisoner that contains particulars of any proposals for the education or training or medical or psychiatric treatment of the prisoner, and may, after any subsequent assessment, add to or vary that programme. This process is mandatory for the CEO. DCS Policy 7 does make explicit reference to offender rehabilitation: Offenders and prisoners with an assessed need will be provided with a range of targeted programs and services that will assist them in developing appropriate social and vocational skills to prevent their reoffending.

Northern Territory The Department of Justice’s offender rehabilitation operates in accordance with, and under the framework of, the Sentencing Act. Part 6 of the Act empowers a court to impose a condition requiring an offender to undertake a prescribed treatment program. Section 100 states:

24


Where a court may attach a condition to an order or require an offender to give an undertaking, the court may, as a condition of the order or as part of the undertaking, require an offender to undertake a prescribed treatment program. Sections 101 and 102 require the informed consent of the offender to participate in the prescribed treatment program. 101. Consent of offender to conditional order A court shall not make an order which has attached to it conditions or which requires an offender to give an undertaking unless the conditions are explained to the offender in accordance with section 102 and the offender consents to: (a) the order being made and to the conditions being attached; or (b) the conditions being included in the undertaking, as the case may be. 101. Explanation of orders (1) Where a court proposes to make an order which has attached to it conditions to which an offender is required to consent or which requires an offender to give an undertaking, it shall, before making the order, explain or cause to be explained to the offender, in language likely to be readily understood by the offender: (a) the purpose and effect of the proposed order; (b) the consequences that may follow if the offender fails without reasonable excuse to comply with the proposed order; (c) where the proposed order requires the offender to undertake a program referred to in section 100, the benefits and detriments of the program, including the medical risks and benefits of any drugs used in the program; and (d) the manner in which the proposed order may be varied. (2) Non-compliance with subsection (1) does not affect the validity of the order.’ In addition, the Prisons (Correctional Services) Act 1980 Part XX relates to, and provides guidelines and rules concerning, medical treatment for offenders serving a term of imprisonment. Treatment programs are possible through these provisions to any prisoner on a consensual basis.

25


Tasmania The Corrections Act 1997 appears to have no directions regarding rehabilitation or programs. Despite this lack of legislative direction, the department had been active in drafting operating frameworks (such as the Custodial Operating Model Project) and procedures and policies for sentence planning (e.g., Implementation of Sentence Planning in Tasmanian Prisons: Stage 1 Offender Services). Western Australia The Prisons Act 1981 sections 95(1)(a) and 95(1)(b) provide legislative guidance for the provision of offender programs. Section 95 (Preparation and implementation of activity programs) states that: (1) Whithout prejudice to the generality of the responsibility of the chief executive officer for the welfare of prisoners conferred on him by section 7(1), the chief executive officer may provide services and programmes for the welfare of prisoners at every prison and, in particular, services and programmes may be designed and instituted with the intention of providing: (a) counselling services and other assistance to prisoners and their families in relation to personal and social matters and problems; (b) opportunities for prisoners to utilise their time in prison in a constructive and beneficial manner by means of educational and occupational training programmes and other means of self improvement; and (c) opportunities for work, leisure activities, and recreation. (2) Participation in and use of services provided under this section shall be voluntary, except that, unless a prisoner is medically unfit, he may be required to work.’ Indefinite Detention Specialist legislation has been included within Australian states and territories to address cases where there is a view that the risk of the defendant reoffending is so high that the sentence applied should be indefinite. This has been drafted in relation to cases of both violent and sexual offending. McSherry (2004) has provided a summary of the relevant legislation in Australian jurisdictions as shown below. Sentencing Guidelines The sentencing process begins after either a plea of ‘guilty’ to a charge or following a criminal trial in which a person has been convicted. The sentencing process is largely determined by Parliament in the Criminal Law (Sentencing) Act that lists matters that the court must take into account

26


when sentencing a convicted person. These are: • the circumstances of the offence • other offences that are to be taken into account • if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or similar character, that course of conduct • the personal circumstances of any victim of the offence, for which purpose a victim impact statement may be read to the court • any injury, loss or damage resulting from the offence • in the case of an offence committed by an intruder in the home of another, the need to give proper effect to what is described as ‘the primary policy of the criminal law’ to protect the security of the lawful occupants of the home from intruders • the degree to which the defendant has shown contrition for the offence — by taking action to make reparation for any injury, loss or damage resulting from the offence or in any other way • if the defendant has pleaded guilty to the offence — that fact • the degree to which the defendant has cooperated in the investigation of the offence • the need to protect the community from the defendant’s criminal acts • the deterrent effect any sentence may have on the defendant or other persons • the need to ensure that the defendant is adequately punished for the offence • the nature and extent of any ordered forfeiture of property (other than that which is a benefit derived from the offence) • the character, antecedents (prior events), age, means and physical or mental condition of the defendant • the rehabilitation of the defendant • the probable effect of the sentence on dependants of the defendant; and • any other relevant matter. As the above list shows, the court must take into account a wide range of factors relating to the defendant, the victims and the community. The court may use pre-sentence reports to assist with this, but will also have regard to the views of victims and their families. The sentencing process is complex because so many matters have to be considered. A great deal of what the court must consider is personal to the defendant, such as prospects of rehabilitation and personal background. This means there can be some variation between sentences imposed on different people for the same offences. However, consistency in sentencing practice is ensured by using precedents, that is, earlier decisions about sentences for the same offence. The court must also consider the penalty fixed for the offence. An act of Parliament usually fixes a maximum penalty for 27


Table 2.4 Indefinite Detention Provisions (Adapted From McSherry, 2004) Jurisdiction Statutory provision ACT

No equivalent provision

NSW

No equivalent provision. Para 10.8 of a report on sentencing produced by the New South Wales Law Reform Commission (1996) expressed the view that provisions providing for indefinite detention should not be introduced in New South Wales

NT

Sentencing Act 1995 — Section 65 (violent offenders convicted of a crime for which a life sentence may be imposed can be sentenced to an indefinite term of imprisonment by the Supreme Court where the Court considers the prisoner to be a serious danger to the community)

QLD

Penalties and Sentences Act 1992 — Section 163 (violent offender who presents a serious danger to the community) and Dangerous Prisoner (Sexual Offenders) Act 2003 — Section 13 (prisoners who pose a serious danger to the community if released can continue to be held under a continuing detention order for an indefinite term)

SA

Criminal Law (Sentencing) Act 1988 — Part 2, Division 3 — Section 22 (habitual criminal) and Section 23 (offender incapable of controlling sexual instincts)

TAS

Criminal Code — Section 392 (dangerous offender) repealed by Sentencing Act 1997 Schedule 1 which commenced on 1 August 1998 Sentencing Act 1997 — Section 19 (dangerous offender convicted of a violent crime)

VIC

Sentencing Act 1991 — Section 18A (offender convicted of a serious offence and high probability that offender is a danger to thecommunity)

WA

Sentencing Act 1995 — Section 98 (superior court may impose indefinite imprisonment in cases where if released, the offender would pose a danger to society)

the offence. For example, section 131 of Criminal Law Consolidation Act sets out the maximum penalty for larceny at 5 years imprisonment. Judges give reasons for the sentences they impose. These record the issues that the judge took into account in reaching their conclusion regarding a sentence. These are known generally as ‘sentencing remarks’. Judge Gordon Barrett from the South Australian District Court offered the following comments to assist psychologists in their preparation of Reports for court.

Practice Direction 46A The guidelines for expert witnesses in proceedings in the Supreme Court of South Australia, published in May 2002, lays down what might be regarded as the rules to be followed in preparing reports for court. The direction makes clear the role played by the expert and it prescribes

28


topics which should generally be included. It makes suggestions as to the format of reports. I will restrict myself to a short account of what features of a report sentencing judges find most helpful and I will refer to some matters of style. When considering sentence the court begins by recognising that the highest sentence it can impose is fixed by the crime, the maximum penalty prescribed for the crime and the circumstances in which the crime was committed. Nothing personal to the offender can increase the penalty beyond what the crime deserves. This is known as the principle of proportionality. Matters personal to the offender can only mitigate the penalty or leave it where considerations of proportionality place it. Experts’ reports can assist a sentencer decide whether the offender’s personal circumstances do not reduce the penalty, or, if they do, to what extent there should be reduction. The Criminal Law (Sentencing) Act partially codifies common law sentencing principles but it is explicitly not exhaustive. Section 10 of the Act sets out sentencing policies and lists matters to be taken into account. Matters personal to an offender which do not bear on these criteria are usually not helpful, although some may have to be included in a report to provide background to the relevant material. Psychologists can most helpfully identify factors leading an offender to commit the crimes, what factors will affect chances of re-offending, and how best to help them stay out of trouble. Drawing these matters together in a succinct concluding paragraph helps the sentencer articulate why a particular sentence is appropriate. All sentencing remarks of Supreme and District Court judges appear on the court’s web site shortly after the sentence is delivered (e.g., seewww.courts.sa.gov.au/sent_remarks/index.html), so psychologists can readily find out how their reports and those of their colleagues have been used in the sentencing process. Turning to matters of style, in the last 10 years or so, the Australian Institute of Judicial Administration has developed programs to improve the quality of judgment writing. Novelists and other writers have taken part in these programs and real efforts have been made to help judges write more clearly and effectively. Consequently, judges are more conscious of writing style in reports they receive from experts. Judges have become more conscious of the need to make their judgments more easily understood. There is no reason to think that sentencers will not appreciate a simpler prose style. Why then should the constant use of the passive voice and writing in the third person be the norm? Why should not ‘It was reported to the writer’ become ‘X told me’? Why should popular but meaningless expressions persist? Why should not ‘X has a variety of mental health issues’ become ‘X has the following psychological conditions …’? These are only a couple of examples. While these might be seen as unimportant matters of style, it is worth remembering that if the psychological report is going to be challenged in 29


court, one way of effectively cross-examining [an] expert witness is to highlight meaningless expressions or ill expressed opinions. One way then of reviewing a report is to imagine being cross-examined on all of it minutely. That may be precisely what happens if experts’ conclusions are challenged. The cross-examiner will not begin with the expert’s strongest and best expressed points. The cross-examination will be much more effective if it focuses on the weakest and least well expressed. Most forensic psychologists will have taken part in some courtroom role plays and will remember examples of that sort of cross-examination. Most professional seminars include exercises in court presentation. A good report is the basis for good court presentation and a bad report will make it very difficult.

Case study 4C in Chapter 4 illustrates the sentencing remarks provided by the Chief Judge in a matter of an armed robbery with reference to a psychological report.

30

chapter

3

The Court Report Structure

J

ust as scientific reports for journal articles require a well-defined structure, so should the court report have such a format. Essential components should include: resources used in the preparation of the report, relevant client background history, assessment findings, and finally, the expert’s opinion(s) on issues relevant to the legal matter under consideration. In the following sections we expand on the necessary details associated with these components, and put forward a structure for the court report.

Referral Details The court report should begin by unambiguously advising the reader of the purpose of the report and from whom it was requested. At the outset it should state the name of the person or organisation requesting the report and details of the particular issues that the report seeks to provide an opinion on.

Information Sources The Information Sources section of the report will list comprehensively all the resources and references used in compiling the report. Typically this will include: • correspondence cited and dated • reports cited (medical/mental health with authors’ names and dates) • details associated with the interviews (dates) • details about the psychological tests used (reference sources and date when tests administered) 31


• other reports (e.g., police reports, witness statements, dated) • research articles (full references and dates). There should be no material omitted from this section — no matter how unimportant it may seem. It is noted that the South Australian Guidelines for Expert Witnesses (Practice Direction No. 46A, see section 1.2) state that it is essential for the expert to ‘give particulars identifying material upon which the expert bases their expert opinion. If any tests or experiments are relied upon by the expert in compiling the report, the report should contain details of the qualifications of the person who carried out any such tests or experiment.’ Direction is also given to an expert in relation to defining their specific duty to the court: ‘An expert witness has an overriding duty to assist the court on matters relevant to the expert’s areas of expertise. An expert witness is not an advocate for a party. An expert witness’s paramount duty is to the court and not to the person retaining the expert.’ It is important that expert witnesses appreciate that various parties may ask them different questions to suit the interests of those they represent. While the expert may answer in a way that may appear to support a particular case, the data itself should never be tampered with or distorted. It is possible the courts will ask that the data be examined by another expert who will then comment on the appropriateness of the opinion formed from the data.

Statement of Qualifications The final component of the resources section of the report should include statements about the expert’s qualifications and their awareness of relevant Practice Directions. The Practice Direction assists the court to ensure that data is a principal focus of the opinion, rather than personal beliefs or values that cannot be substantiated. The expert is required to state their academic and professional qualifications, professional affiliations and other relevant supplementary information that helps establish their credibility as an expert witness. In some jurisdictions it is a requirement for a report to be accepted that the author acknowledges that they have read the relevant Practice Direction implying that they understand the ‘Guidelines for Expert Witnesses’ and agree to follow them. This is intended to ensure that experts are openly fair and honest in their work, and that they are not perceived to be biased in favour of the party who engaged them.

Background Information If any results related to the assessment are to be meaningfully interpreted, a detailed account of the context in which the legal issues arise is important. The psychologist, therefore, should obtain a thorough understanding of the person’s background before attempting any interpretation of the assessment results. A good clinical history of the client contains 32

THE COURT REPORT STRUCTURE

certain essential elements, the information shown below is often the most useful when creating a full history.

Personal and Family History Where the client was born and grew up is an important background pointer. This may raise issues about the impact (stabilising or destabilising) that a move had on the person (whether from one country to another or from one region to another). If the client moves countries and their first language is no longer the first language of the new country the individual may have experienced problems in adjustment, particularly when the cultures of the respective countries are markedly different. The move from one country to another may also have involved trauma (e.g., if the person was held in a detention or refugee camp) and an understanding about how the client dealt with such change or trauma may be an important factor in understanding their responses in other situations. Parental (or carer) relationships have a powerful influence upon the individual’s psychological development. The assessor may be interested in: • whether each parent is alive • whether the parents are together or not, and if not, when they separated • if separation occurred, what impact it had on the client • the client’s relationship with each parent through childhood • the current relationship with each parent • when the client last had contact with each parent. Associated with this questioning will be a network of alternative and supplementary questions (such as, in cases of separation, what was the client’s relationship with any step-parents?). The purpose behind obtaining this parental history is first, to assist in determining the closeness of bond between the client and their parents/main caregivers, and second, to determine whether or not there was evidence of dysfunction or violence within the family system. These factors may be important in understanding the development and maintenance of dysfunctional behaviour. Understanding the similarities and differences between siblings and the client may also provide useful information. If the majority of siblings are in custody then this may suggest a familial pattern of dysfunction. If, however, siblings are generally well adjusted and well functioning, alternative hypotheses can be speculated. Questions that relate to siblings are likely to follow a similar theme to those asked about the parents. These may include: • How does the client view the sibling as a person? • How do they see their relationship with each sibling? • When did the client last have contact with each sibling?

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As families are often the principal source of support for individuals during periods of stress, the assessment should try and focus on clarifying how the client perceives the support that both parents and siblings are able to offer him or her. The next significant element in obtaining familial information relates to significant relationships. Significant relationships for clients may be defined as being those that had some long-term status, and/or those that may have produced a child or children. For each relationship accurate information should be obtained. This may include: • When did the relationship begin? • When did the relationship end? • How did the client perceive the partner during the relationship? • How did the client perceive the stability and general harmony of the relationship? • The reasons why the relationship ended. • What was the client’s reaction to the termination of the relationship? In reviewing the client’s current relationships it may be relevant to establish how the client perceives their present relationship in terms of both stability and level of support. Questions such as: ‘When did you last see and speak with your partner?’ may provide a simple objective indication of closeness. If, for example, the client states that their relationship was ‘very close’ but also states that they have ‘not had any contact for the past 6 months’, further questioning may assist in determining the relationship’s actual strength. A very important element of the family history is whether the client has children, and their relationship with those children. Where parental separation has occurred, the relationship between the client and the child may be a source of primary stress. The assessor might be interested in: • the child’s age • the child’s personality and behaviour • the child’s level of functioning • the child’s school performance • the child’s coping skills • the child’s relationship with the client • when the child last had contact with the client. Details about the home or place where the client resides is the final component of the family history. This information may help the psychologist understand the client’s general level of stability and contentment with life. Details of interest here could include: • the nature of the residence (house, unit, and so on) 34


• whether the residence is owned outright/private rental/housing trust and so on. • the number of bedrooms • how long the client has lived there • other occupants of the residence • the level of contentment provided by the home environment.

Education Background Obtaining information about a person’s educational background can help the assessor understand the individual’s capacity to communicate. It is also useful in establishing whether or not problems were present in childhood. Detailed information related to the client’s primary and secondary education should include: • the number of schools attended • when the client attended those schools • the type of school attended (private/public/religious based/special needs) • whether the client received any special education • the reasons for leaving school(s) • friends at school • peer relationships • relationship with teachers • evidence of any behavioural problems (e.g., fighting) • evidence of school disengagement or truancy • ability to cope with the academic work • favourite subjects • highest academic standard attained • any expulsions or suspensions • age at leaving school. Access to collateral information usually strengthens the accuracy and credibility of the history taken. Obtaining a client’s school report may offer important information about both the client’s childhood behaviour and their academic orientation. If the assessor obtains written consent to release information, schools are generally happy to provide the assessor with reports. Parents may also assist in providing this data.

Vocational Background Obtaining a complete vocational history can sometimes be a lengthy process, on other occasions it can be quite simple and quick. To gauge the task 35


complexity, a usual starting point is to get a flavour of the person’s history by asking an initial general question, such as: ‘Have you had many jobs over the years?’ or ‘What has been your main area of work?’ It may then be relevant to itemise information about each job to determine: • job title • specific job function • name of the client’s employer • when the job started and finished (working hours) • duration of the job • whether the position was full or part-time (number of hours per week) • client’s level of job satisfaction • client’s level of stress in the job • reasons for leaving the job • current employment status and primary income source. Again the inclusion of collateral information (e.g., any vocational references) will add weight to the client’s reported history.

Physical Health Background Setting out relevant factors about a person’s physical health can often give insight into the nature of the person’s general level of function. The following are important details for an assessor to obtain: • client’s history of past accidents • client’s history of past traumas • any specific conditions relevant to dysfunctional behaviour (e.g., hepatitis associated with drug usage) • when conditions were first diagnosed • how the client sees him or herself in terms of level of fitness • how the client judges their general physical health • the general practitioner (GP) and details and history of the client’s association with that GP. Collateral information, including medical reports and hospital discharge statements, can usually be obtained with minimal inconvenience — provided the client provides their written consent for the release of materials.

Mental Health Background Questions associated with a person’s mental health sometimes require careful wording. Many people perceive mental health problems as being extreme states (e.g., schizophrenia) and easing into the topic with simple questioning about day-to-day issues can elicit useful information. A useful 36


start is to ask questions about the client’s mood (current, stability, and so on). Ask the client to consider what their major stresses are, what their major stresses in life have been, and at the time when the relevant offence was committed whether they were experiencing any specific types of stress. To rush this history may not allow the client to feel they can discuss the issues in an emotionally safe way. It is important when inquiring about extremely sensitive issues, such as past abuse, that the assessor allows the client to proceed at their own pace. Past history of involvement with mental health services, psychologists or psychiatrists should also be clarified, and any collateral reports from psychologists or psychiatrists or mental health services should be sought when necessary.

Substance Use History Obtaining details associated with a client’s substance use is best conducted by taking a direct, systematic, detailed history for each substance. We suggest that it is best to deal first with substances that are most common and legal, to those that may be less common and illegal. When discussing substance use, refer to drugs by their street name(s) as this is likely to have most relevance to the client. However, once the information has been gathered, the written report should describe the drugs by their scientific names, not the street name. Substances to be reviewed should include all of the major types of drugs, as shown in Table 3.1. Clients rarely have problems providing detailed histories about their substance use. They will usually provide information to the assessor even when drugs per se may be unrelated to their charges, and will often implicitly acknowledge a form of offending behaviour (e.g., the use of an illicit substance) for which they may be technically charged.

Past Legal History It is important that this section relates only to offences where the individual has been convicted rather than those offences where the individual may have been charged but not convicted. Past history should include: • the date(s) when the individual first began offending • the nature of specific offences for which the person was convicted • a statement about the consequences of the convictions (such as fines and periods of time spent incarcerated) • what the client perceived were their principal motivators for past offending. In some cases, individuals may minimise their past history of offending. To guard against this, in serious criminal matters it is important that the assessor obtain a complete, accurate and up-to-date police history record so that the history of past offending is not mis-stated by being based solely on the

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Table 3.1 Common Street Names for Illegal Drugs Scientific name

Street name(s)

Crystal methamphetamine hydrochloride

Ice, meth, crystal meth, shabu, glass, gear

Amphetamines

Speed, up, fast, louee, goey, whiz, pep pills, uppers, disco lollies

Methylenedioxy methamphetamine (MDMA)

Ecstasy, E, googs, pills, XTC, eccy, the love drug,

Benzodiazepines Benzos — brand names include Valium, Ducene, Alepam, (Diazepam, Oxazepam, Murelax, Serepax, Alodorm, Mogadon, Rohypnol, Normison, Nitrazepam, Euhypnos Flunitrazepam, Temazepam) Buprenorphine

Bupe, B

Cannabis (marijuana)

Grass, pot, hash, weed, reefer, dope, herb, mull, buddha, ganja, joint, doobee, stick, buckets, cones

Cocaine

C, coke, flake, nose candy, snow, dust, white, white lady, toot, crack, rock, freebase, Charlie

Gamma-hydroxybutyrate Fantasy, grievous bodily harm, GBH, liquid ecstasy, liquid E (GHB) Heroin

Smack, skag, dope, H, junk, hammer, slow, gear, harry, horse

Inhalants (i.e., glue, paint, liquid paper)

Glue, gas, sniff, huff, chroming (as in the use of chrome paint), poppers

LSD (lysergic acid diethylamide)

Acid or trips

PCP (phencyclidine

Angel dust

client’s self-report. Inaccuracies in this area potentially discredit the veracity of the psychologist’s report.

Other Background Issues Depending on the nature of the client’s offence and background, additional background information may be required. This may include exploration of issues such as the following: • military background • psychological treatment history • gambling history 38


• • • • •

financial history sexual history sexual developmental history life-threatening behaviour history trauma history.

The expert should add further information here that is relevant to the case. However, there is always a limit to how much and what information should go into a report, and in most cases, unless there is clear relevance, information can be omitted. The use of expressions such as ‘an unremarkable history’ can often reduce the level of detail required for a particular section when there appears to be no abnormal or unusual elements.

Current Legal Matter In criminal matters it is important for the assessor to obtain an accurate account of the offences with which the individual is charged, and information related to when the alleged offending occurred. It is also important that the assessor knows whether the client is pleading guilty or not guilty to the charges. (The assessor does not want to jeopardise the client’s plea by inappropriate questioning.) Assuming that the client is pleading guilty to the charge, the assessor should determine: • What did they allegedly do? • What reasons did the client provide for the offending? • How did the client feel about the offending after the event? • How does the client currently feel about their offending? We would recommend the assessor takes a functional assessment approach to understand why offences occurred. This method clearly and systematically identifies the pathways to offending for the individual and requires a comprehensive analysis of the antecedents of offending. It is helpful to ask the client to describe not only the offence itself, but the day leading up to the offence, and the offending period or weeks leading up to when the offence occurred.

Behaviour During the Assessment In this section the expert seeks to provide an accurate description of the client during the time they were assessed. This may include information about: • the client’s physical appearance • the client’s speech • the client’s mood • whether the client has any problems understanding instructions

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• whether the client was compliant with requests • whether the client seemed motivated to perform as well as they could. The assessor should also include details about: • when the assessment took place • where the assessment took place • duration of the assessment • any unusual features about the client such as whether they are especially tearful, angry, disconnected, or other unusual behaviours (e.g., falling asleep) need to be accurately documented.

Psychometric Test Results Psychometric testing helps to distinguish a psychological report from the reports of other experts. Psychological tests can quickly assist the expert with questions about the client’s capacity to engage in the legal process, the predisposition of the client to offend, factors that may be relevant to the client’s mental health, and generally can clarify both clinical and offending issues. It should be stressed that psychological tests alone cannot provide absolute answers, but they can be important in helping the assessor formulate relevant clinical and legal hypotheses. They are particularly useful in a legal context as they generally provide normative data that can be used to place the client in relation to the ‘normal’ population. In this way test results provide an objective basis from which to form an opinion. Selecting appropriate psychological tests for assessment in forensic matters is an important skill. It can mean the difference between a strong empirically supported case versus a weak, poorly justified case. Because psychological assessments are usually carried out within a limited time frame, we recommend the following guidelines to get maximum efficiency from the tests. In selecting tests we always recommend that psychologists follow the APS Code of Ethics. Desirable test properties are listed below: • the test is current and in common usage • the test has demonstrated psychometric properties of both validity and reliability • test limitations should be clearly identifiable (e.g., age limits, reading level limits, and so on) • the test has full normative data available for both clinical and nonclinical populations • the test administration procedures should be clearly defined and standardised • there should be a body of literature that would support the use of the particular test in the context of the impairment assessment 40


• the psychometric assessment should incorporate a measure of response bias. Chapter 9 of this book describes some of the most commonly used psychometric tests. When reporting the psychometric data, the psychologist should include: descriptive information about the test, results expressed in relevant comparative terms (e.g., as percentile scores), and a statement about the comparative sample. When including psychometric test results in a report it is best to use separate headings that define the general area of the assessment. Each of these sections will incorporate a statement about each test used that will explain the general purpose of the test, and summary details about the findings of the test. As there is often a premium on the size of a report, it may be helpful to include a general summary of test details in an appendix so the reader can refer to it without adding to the central bulk of the report. Sufficient details associated with test results should be presented so that another expert can read the report and make relevant inferences. The results of tests should also include a measure of client response validity, especially in cases where malingering is suspected. It is important to note here that many people express considerable reservations about the appropriateness of psychological testing with Aboriginal clients, particularly those from traditional communities. For those interested in this issue we recommend that they consult the work of Tracey Westerman and colleagues in Western Australia (http://www.indigenous psychservices.com.au) and/or Alfred Allan and colleagues examining the appropriateness of risk assessments for Indigenous clients convicted of sexual offences (http://www.aic.gov.au/crc/reports/200001-06.html).

Veracity of Psychological Tests in Court Standard tests that measure intelligence are frequently debated within the court system as to their validity and reliability. A problem that may emerge for the assessing psychologist relates to public ignorance about the psychometric properties that underpin psychological tests. Typically, legal counsel use such ignorance (knowingly or otherwise) to discredit a test by examining specific items of the test and illustrating how either an answer that is incorrect should be correct, or how it lacks relevance. The Wechsler Intelligence tests are a frequent target of attack despite the profession recognising such instruments as representing one of the bettervalidated psychometric tests. Professional societies have sought to address how to avoid potential abuse of psychological instruments. However, there appear to be few effective solutions to ensure the integrity of the test instrument. While it is often argued that issues of confidentiality and the test copyright would be seriously damaged if the test becomes open to public scrutiny by the court, the

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law and its administrators generally see this as an irrelevancy and demand the right to examine all information. The following guidelines are recommended to assist the practitioner provide appropriate information for the court which may minimise the negative consequences of test scrutiny: • meet the court demands with minimal risk of disclosing sensitive test information • recognise that not assisting the court may lead to the psychologist being held in contempt • express reluctance to photocopy materials and state reasons of copyright protection • explain the problems likely to be experienced with test interpretation for those nonpsychologists who are unfamiliar with psychometric test properties • minimise sensitive materials provided to jurors • recognise that the psychologist may be bullied and coerced by counsel as a strategy to undermine the evidence if it is not helpful to their case. Test publishers Harcourt have outlined in a procedure that may be referred to the courts for their consideration. The article, ‘Releasing Test Materials: Positions of the Psychological Corporation’,† states: Harcourt does not wish to impede the progress of legal proceedings; however, we are equally unwilling to jeopardise the security and integrity of our Test instruments by consenting to the release of copyrighted and confidential material to those not professionally qualified to obtain them. Should litigation in which a psychologist is involved reach the stage where a Court considers ordering the release of propriety Test materials to nonprofessionals such as counsel, we request that the Court issue a protective order prohibiting parties from making copies of the materials; requiring that the materials be returned to the professional at the conclusion of the proceedings; and requiring that the material not be publicly available as part of the record of the case, whether this is done by sealing part of the record or by not including the materials in the record at all. In addition, testimony regarding the items, particularly that which makes clear the content of the items, should be sealed and again not be included in the record. Pleadings and other documents filed by the parties should not, unless absolutely necessary, make specific reference to the content of or responses to any item, and any proportion of any document that does so, should be sealed. Finally, we ask that the Judge’s opinion including both findings of fact and conclusions of law, not include descriptions or quotations of the †

National Academy of Neuropsychology Bulletin (2004), 19(1), pp. 1–8.

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items or responses. We think this is the minimum requirement to protect our copyright and other propriety rights in the Test, as well as the security and integrity of the Test.

Assessment of Mental Disorder One of the major areas of assessment in any psychological report is to establish whether the defendant has a mental disorder. While the legal definitions of mental disorder are described in Section 2 of this book, most psychologists in Australia refer to the Diagnostic and Statistical Manual of Mental Disorders (4th Edition, text revision: DSM-IV; American Psychiatric Association, 2000) to do this. The DSM-IV defines mental disorder as … a clinically significant behavioural or psychological syndrome or pattern that occurs in an individual and that is associated with present distress (e.g., a painful symptom) or disability (i.e., impairment in one or more important areas of functioning) or with a significantly increased risk of suffering death, pain, disability, or an important loss of freedom. In addition, this syndrome or pattern must not be merely an expectable and culturally sanctioned response to a particular event, for example, the death of a loved one. Whatever the original cause, it must currently be considered a manifestation of a behavioural, psychological or biological dysfunction in the individual. Neither deviant behaviour (e.g., political, religious or sexual) nor conflicts that are primarily between the individual and society are mental disorders unless the deviance or conflict is a symptom of a dysfunction in the individual, as described above (p. xxxi). Three different types of disorder are likely to be of most interest – intellectual disability, clinical symptomatology (DSM-IV Axis I and Axis II disorders), and physical or organic impairment. We will consider the assessment of each in turn.

Tests of Intellectual Functioning Psychologists differ in how they use and also how they are orientated towards using measures of intellectual functioning. Information about a person’s cognitive functioning can provide considerable assistance in determining not only characteristics about the individual’s principal diagnosis, but also information relating to treatment issues and prognosis. When conducting a general forensic assessment, time constraints are a fact of life. For this reason it is recommended that the assessor utilise brief measures rather than full tests when establishing the basic profile of the client. If abnormalities are indicated from the preliminary assessment, either more comprehensive intelligence tests (such as the WAIS-III; Wechsler, 1997) or neuropsychological tests (see below) may be needed or at least recommended 43


within the context of the report. Tests that provide a quick and accurate appraisal of a person’s intellectual functioning include the Kaufman Brief Intelligence Test (K-BIT; Kaufman & Kaufman, 1990), the Wechsler Abbreviated Scale of Intelligence (WASI; Wechsler, 1999), and the Test of Nonverbal Intelligence (TONI; Brown, Sherbenou & Johnsen, 1997).

Tests of Clinical Symptomology Clinical psychologists commonly use tests that assess clinical symptoms. Perhaps the best known of these is the MMPI (Minnesota Multiphasic Personality Inventory), originally developed in 1939 (Hathaway & McKinley, 1940), which although widely used has, in our opinion, probably now exceeded its use-by date as other more clinically relevant and psychometrically sophisticated tests have become available. In 1989, the MMPI-2 was updated, with new normative data and adapted scales added, but the revised measure offered only superficial improvement with significant limitations. For example, with the development of new mental health concepts the MMPI’s validity and language became questionable. No longer were terms such as ‘hypochrondriasis’ or ‘psychasthenia’ a part of psychological language. They have been replaced by terms such as ‘somatic complaints’ and ‘obsessive-compulsive behaviour’. The Personality Assessment Inventory (PAI), developed by Leslie Morey in 1991, is one such test. It represents a new generation multiscale inventory that has greatly improved psychometric features over the MMPI. The assessor should bear in mind that both the MMPI and the PAI were developed to provide clinical profiles across a multitude of scales to assist diagnosis. This structure offers considerable advantages over more specific tests that cannot allow for relative comparisons between clinical symptoms. The PAI added important new scales and subscales that were relevant to forensic assessments that included measures of substance use (alcohol problems/drug problems) posttraumatic stress and borderline/antisocial personality features. Both instruments provide ‘validity’ scales that indicate a client’s potential response bias, especially when describing symptoms in terms of exaggeration or underreporting. In addition, the PAI, provides a series of ‘treatment’ scales that included measures of aggression, suicide ideation, stress, lack of support and treatment orientation. These scales offer considerable forensic assistance for criminal and civil treatment assessment. Finally, the PAI provides a measure of how the person interacts with others in relation to dimensions of ‘dominance’ and ‘warmth’. Such dimensions are relevant to understanding the interpersonal context of an offender’s engagement in criminal activity (e.g., whether the individual is a follower or leader, and whether the individual is likely to show empathy for their victim or not). A considerable body of literature has now accumulated in relation to the PAI (see e.g., Duellman & Bowers, 2004; Edens, Cruise, & BuffingtonVollum, 2001; Edens, Hart, Johnson, & Johnson, 2000; Helmes, 1993) 44


and it now appears one of the most significant and important contemporary clinical measures available to the psychologist to aid diagnosis. White (1996) foreshadowed this development when he stated: ‘The PAI should herald a breath of fresh air for clinicians who have lost faith in the value of psychological testing’. The PAI adolescent version is soon to be released.

Specific Clinical Tests In instances when an assessor wishes to measure specific clinical features, a single-dimensional test may be used. Details from specific tests can indicate where the person fits within a known clinical population, and the measure may provide more details about the person’s condition. Examples of more specific tests include: • for measuring anxiety, the Beck Anxiety Inventory (BAI; Beck & Steer, 1993a), or the State Trait Anxiety Inventory (STAI; Spielberger, 1983) • for measuring depression, the Beck Depression Inventory (BDI; Beck & Steer, 1993b) or the Profile of Mood States (PMS; McNair, Lorr, & Droppleman, 1971) may be relevant • for measuring depression, anxiety and stress, the Depression, Anxiety and Stress Scale (DASS: Lovibond & Lovibond, 1995) • for traumatic stress, measures of the Posttraumatic Stress Diagnostic Scale (PDS; Foa, 1995), the Trauma Symptom Inventory (TSI; Briere, 1995), or the Detailed Assessment of Posttraumatic Stress (DAPS: Briere, 2001) • for stress/pain, the Occupational Stress Inventory-Revised (OSI-R; Osipow, 1998) and the Psychosocial Pain Inventory (PSPI; Heaton, Lehman & Getto, 1980). Tests of Personality and Personality Disorder Many trait-based personality tests have been designed to measure individual differences. Some of these include: • California Psychological Inventory (Gough, 1987) • the 16-PF (5th ed.; Cattell, Cattell, & Cattell, 1993) • the NEO-Personality Inventory — Revised (NEO-PI-R, Costa & McCrae, 1992) • the Structured Clinical Interview for DSM-IV Personality Disorders (SCID-II; First, Spitzer, Gibbon, & Williams, 1997).

Neuropsychological Tests A full neuropsychological assessment involves measuring functioning across a number of different neuropsychological domains. We do not have

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room here to provide a comprehensive coverage of the development of neuropsychological assessment, nor can we discuss the various issues to be considered in conducting such an assessment. We would refer readers to what are considered to be the leading texts in this area, Lezak (1995), Spreen and Strauss (1991) or to the chapter on neuropsychological assessment in Groth-Marnat’s (1999) Handbook of Psychological Assessment to gain this information. In the glossary we provide a brief description of a number of neuropsychological tests that collectively gives a broad overview of a range of neuropsychological functioning. These tests are frequently used; they are brief, extensively researched, and psychometrically sound.

Opinion The opinion section is the heart of any report and is likely to be the most closely scrutinised part. It is fundamental that this section is unambiguous and addresses the pertinent issues outlined at the start of the report. It should not contain jargon and the writer should appreciate that the reader is not likely to be an expert. The writer should distinguish clearly between the facts and the inferences. The writer should not go outside their area of expertise and within this domain should make clear any areas of uncertainty. This section should be set out logically with clear recommendations that have relevance and credibility for the courts to consider. In criminal matters, a logical sequence for the opinion section to follow would be: • a summary of the relevant background material • a summary of assessment findings • deducted provisional mental health diagnosis • determination of the relationship between the mental health issues and the offending behaviour • determination of possible intervention(s) and rehabilitation that may reduce the likelihood of further offending behaviour • opinions offered about impairment issues, if raised. In writing reports for civil law matters a slightly different structure may be adopted for the opinion section. In this instance it is important to: • establish the client’s pre-accident status, and with this outline whether there had been a history of previous accidents, a history of previous psychological impairments, a history of past treatment, and their general level of function prior to the accident • establish whether the person has a compensable psychological condition. This may require questioning, in relation to what the current psychological tests showed, whether the determination of a diagnostic category is relevant

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• examine whether the psychological condition was a consequence of the subject accident or not. It should be established that there is either a direct or indirect causal linkage between the psychological injury and the subject incident • further explain the longitudinal history of the psychological condition. This will include whether or not treatment has precipitated the assessment, how long after the accident the psychological assessment took place and whether the condition has changed over time or with treatment, or is likely to change • outline clearly the basis by which the professional determines the level of psychological impairment and with this, outline the relevance of guidelines followed. For example, if the individual is using the American Medical Association Guide: which specific version, and what are the identifying features. The question of level of impairment is fundamental to any potential compensation • comment on issues associated with potential malingering. We believe that if the psychologist adheres to the structure we have proposed, it will help to ensure that such reports contain the type of information that will assist the courts in their decision making about the matter under consideration.

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48

chapter

4

Addressing the Legal Issues

T

he role of the expert witness is to collect empirical data relevant to the legal issue under consideration, and to use such information to help clarify the issues and allow the courts to weigh their relevance in a fair and just way. It is essential that the report offers an opinion on the legal issue under consideration by the court. In this section we look at the some of the main areas in which an opinion is sought (bail determinations, sentencing, mental impairment, fitness, and compensation). For each area we describe how an opinion might be derived, and give examples of psychological assessments that have been developed for use in the area under discussion. Finally, we provide an example of an opinion, along with the comments of the judge or magistrate as to the usefulness of the opinion to the final determination.

Rights of a Person When Being Questioned by the Police In Australia all citizens are entitled to a range of privileges or rights when they are arrested. In the United States (US) these rights are referred to as the Miranda Rights — taken from a 1966 case of Miranda v Arizona. Such rights are universally applied in most western countries to ensure fairness in the law. The Australian states define within the legislation a person’s rights upon arrest, meaning that a person has: • the right to remain silent • the right to have a legal representative present when interviewed 49


• the right to have a person assist them at interview if English is not their first language, or if they have problems in relation to their cognitive functioning, or if they are of a particular racial or ethnic group that may be disadvantaged, or if they are a minor. Sometimes, in cases that involve individuals with mental health problems, there is concern regarding the person’s ability to knowingly waive these rights. With a valid waiver a person may consent to confess to a crime or be searched. While courts presume that individuals are capable of waiving their rights when the issue is raised, the courts may seek assurance from a psychologist in retrospect about the person’s capacity. In some instances the individual may not understand conceptually what is meant when a police officer advises him or her of their rights. For example, a person with a severe intellectual disability may not necessarily appreciate what it actually means to remain silent. In some cases questioning may take place between the defendant and the police where in fact it is clear that the defendant is unable to conceptually grasp the purpose behind the police questioning. In such matters, an expert witness may be asked to provide an opinion as to the fairness of the police interview.

Case 1A: Police Interview (R v Hutson [No. 1999/997]) An example of this occurred in this matter where the defendant was a young Aboriginal male who had undergone a police interview. A voir dire was instigated in order to determine the admissibility of the full police interview. During the voir dire it was established that the defendant’s intellectual functioning was in the mental retardation range (i.e., IQ < 70) and his capacity to deal with complex conceptual problems was very limited. The offence involved a group of youths breaking into a property and assaulting the owner of the property. It was established that the defendant went to the property but did not participate in the assault. The police officer when interviewing the defendant posed a complex hypothetical argument by stating that if the defendant had access to a weapon he would then have taken it with him and engaged in the offending behaviour. The conceptual elements were beyond the defendant’s grasp and his agreement with the premise implied his guilt. In the voir dire the Judge chose to exclude the record of interview related to this form of questioning and considered the defendant was a vulnerable witness. The defendant subsequently was found to have ‘no case to answer’.

Case 1B: Understanding the ‘Right to Silence’ (R v Lemm [2004] SASC 416) In this matter, the defendant was arrested in relation to the alleged murder of his spouse. The defendant was a person of Asian background

50

ADDRESSING THE LEGAL ISSUES

who had had very limited education and whose intellectual functioning was within the mental retardation (IQ < 70) range. It was argued in a voir dire that at the time of the arrest the defendant was unable to understand his right to silence and his right to have legal representation. In this matter, the judge chose to reject the opinion of the psychologist and accepted the full record of interview.

Fitness to Stand Trial In most western countries the law requires that a person be ‘competent’ (US terminology) or ‘fit’ (Australian terminology) if they are to be tried in a court of law. A frequently quoted formulation of the common law test for fitness to stand trial in Australia was given by Justice Smith of the Victorian Supreme Court in R v Presser [1958] VR 45. The criteria can be summarised by saying that the defendant needs to have a layman’s understanding of what goes on in court, what charges are being laid against him/her and what instructions he/she will give to his legal advisors about these charges (Glaser, 1987). The Presser criteria outlined by Justice Smith are similar to those delineated by R v Pritchard 1836 in the UK and Dusky v. United States 1960 in the USA. The six Presser criteria have been subsequently approved and applied by courts in Australia (Birgden & Thomson, 1999). In South Australia, for example, a person can be deemed ‘unfit to plead’ according to the following criteria defined by S269H of the Criminal Law Consolidation Act (Mental Impairment). A person is mentally unfit to stand trial on a charge of an offence if the person’s mental processes are so disordered or impaired that they are: (a) unable to understand, or to respond rationally to, the charge or the allegations on which the charge is based; or (b) unable to exercise (or to give rational instructions about the exercise of) procedural rights (such as, for example, the right to challenge jurors); or (c) unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings. A mental impairment includes: (a) a mental illness (b) an intellectual disability; or (c) a disability or impairment of the mind resulting from senility, but does not include intoxication’. (Criminal Law Consolidation Act, 1935, p. 5007) Evaluation of fitness should be based on empirical and professional standards and take into account the demands of a defendant’s specific legal situation and what is likely to be required of that defendant in a given legal procedure. It should take into account the seriousness and complexity of the

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charges, the challenges facing the defendant in a particular case, the defendant–lawyer relationship, the ability of the defendant to adequately instruct their lawyer and successfully communicate with the lawyer. The degree of a person’s fitness should be higher as the offence becomes more serious and/or as the complexity of the trial increases. Therefore, it may be that the same defendant is competent for one type of legal proceeding but not for another. In criminal matters where questions are raised relating to fitness to plead at trial or competence to have committed an offence (insanity), the compilation of data should be included within the body of the report. Here the expert should outline the relevant legislation, and provide a summary of information obtained from the client that may attempt to shed light on the matter. The development and use of fitness measures has been a focus of much empirical research since the early 1970s. Grisso (1986) provided an initial review of such measures, and indicated that specialised fitness assessments required: standardisation and scoring criteria (reliability and validity); and stability of the factor structure and compatibility with legal criteria. Some of the assessment instruments that have been used to assess a person’s fitness include: • the Competency Screening Test (CST) • the Competency to Stand Trial Assessment Instrument (CAI) • the Competence for Standing Trial for Defendants with Mental Retardation (CAST-MR) • the Georgia Court Competency Test — Mississippi Version Revised (GCCT-MSH) • the MacArthur Competence Assessment Tool — Criminal Adjudication (MacCAT-CA) • the MacArthur Structured Assessment of the Competencies of Criminal Defendants (MacSAC-CD) • the Fitness Interview Test — Revised Edition (FIT-R). In general, these instruments have been empirically developed to measure the defendant’s capacity to understand elements of the legal process from the perspective of their impairment. Fitness assessment instruments appear to offer much greater reliability than traditional clinical judgment in addressing questions of fitness. Cases of fitness that have been successful in Australian courts are comparatively rare. The difficulty is making sure that the specifics of the legislation can be shown to match the case. Australian fitness legislation appears very similar to Canadian legislation, and as such, a Canadian test — the Fitness Interview Test (Revised; FIT-R) — has emerged as a valuable instrument for screening individuals who may have difficulty grasping the essential components of the criminal legal system. Roesch et al. have published numerous articles that have shown the evolution and relevance of the Fitness 52


Interview Test. Some preliminary research (e.g., Parton, Day & White, 2004) has indicated that the FIT-R test has utility in Australian cases.

Fitness to Plead Case Examples Case 2A involved a number of expert witnesses (both psychologists and psychiatrists) who gave evidence about the fitness of a man charged with attempted rape. The matter was heard by the judge alone. It was an important case to illustrate the interpretation of the court in relation to the defendant’s understanding of the nature of the charges.

Case 2A: Understanding the Nature of the Charges (R v Miller [2000] 2 SASC 152) Objective Facts (As Outlined by the Judge) On Wednesday, 2 September 1998 the victim left the shop where she worked at about 7.00 pm. As she walked through a reserve, the defendant (Miller) grabbed her shoulder from behind. She turned to face Miller. He pushed the victim to the ground and sat on her thigh. He tore her t-shirt and, in the process, the victim’s brassiere came off. He pulled her trousers off. When she screamed he struck her about the face. During the assault, Miller said he had a gun and told the victim to listen to him or he would kill her. Miller asked the victim to take his trousers off. He kissed her on the mouth and about her chest and touched her on the outside of her vagina. Miller removed his penis from his trousers and insisted that the victim take it in her hand and insert it into her vagina. When the victim positioned the penis alongside her vagina, Miller responded by striking her. The victim’s screams were heard by a witness who was reversing her car from a nearby driveway. She came to the aid of the victim. She saw the victim, naked, running and being pursued by Miller. As the witness yelled out, Miller turned and fled. He was pursued and ran to the shopping centre. Miller was wearing a basketball-type singlet which he removed during the course of the pursuit. Some minutes after he fled, Miller entered a bottle shop and purchased alcohol. While he was in the shop, people nearby but outside the shop were talking about a woman being attacked. Miller was heard to say ‘What woman, what woman.’ Miller was later arrested and charged with attempted rape. The matter went to trial and a question of fitness to plead was raised by the defence. The accused was now aged 31 years. It was indicated from medical records that the accused at a young age sustained a serious head injury with frontal lobe damage. In addition, he may also have suffered brain damage as a result of persistent and heavy alcohol abuse.

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Assessment The psychological assessment of the defendant indicated his overall intelligence was within the mental retardation (IQ < 70) range and in the bottom 0.5 percentile range of the age equivalent population. His nonverbal functioning was significantly inferior to his verbal functioning. His ability to deal with abstract verbal information was grossly limited. His understanding of general information was very poor. While he demonstrated basic mental control, both his short-term and working memory were extremely limited. In both verbal and visual short-term memory tasks, Miller’s performance was consistent with a person who has a major cognitive impairment. His overall cognitive functioning was equivalent to that of an average 6-year-old, but his ability to think in an abstract way is significantly below that of an average 6-year-old and extremely limited.

Opinion An opinion was put that the accused was unable to understand the charge of attempted rape. The accused’s understanding was limited to the concept that since he did not have sex with the victim, in his mind he was not guilty of any offence. The inability to understand the concept of attempted rape was caused by his intellectual impairment.

Judge’s Comments ‘And the question, I consider, is whether the accused, because of mental defect, fails to come up to certain minimum standards which he needs to equal before he can be tried without unfairness or injustice to him… … He needs, I think, to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any …’ ‘… The accused has consistently demonstrated that he is unable to apply the concept of “attempt” to the circumstances of the charge against him. … Some of the answers given by the 54


accused might suggest that he has gained an understanding of the meaning of attempted rape, but in my opinion he has demonstrated that he is unable to apply that concept to the circumstances of the charge against him. In addition, I have no doubt that even at the most basic level the accused is not capable of understanding the concept that ‘they are saying’ that when he tried to have sexual intercourse with the woman he knew she was not consenting or realised she might not be but decided to have intercourse regardless of whether she was consenting or not. Such concepts, particularly in conjunction with the concept of attempting to have sexual intercourse, are beyond the accused’s comprehension. … Considering each of the sub-sections of s 269H individually, … I am satisfied the accused is unable to understand the charge within the meaning of s 269H(a), in my opinion the accused is mentally unfit to stand trial on the charge of attempted rape. Approached in another way, the accused does not meet the minimum standards required in this regard before he can be tried without unfairness or injustice.’

Case 2B: A Taxation Matter and Fitness A second case that was upheld in a fitness hearing involved a defendant who had been charged with defrauding the Australian Taxation Office. In this matter, despite owning a transport business the defendant was largely illiterate and innumerate. It was alleged he falsely signed a claim for monies paid to him and claimed a significant tax credit that was inaccurate.

Background The defendant reported a relatively unremarkable childhood background, apart from reporting minimal interest in his education, and a keenness to leave school as soon as he could. The defendant stated that after leaving school he soon found employment as a gravedigger and later shearer. The defendant indicated he then moved to working as a truck driver, a vocation he has maintained on a continuous basis since that time. The defendant indicated he did not have any major health or mental health problems, and that he had had one significant past relationship, a marriage of 13 years. He said he and his wife had three children from that marriage, a daughter now aged 22 and sons aged 20 and 18 respectively. The defendant indicated that he had full residency of the children, and in the past 6 years had kept a housekeeper (and her two children) living in his home. The defendant reported no past history of criminal behaviour. It is indicated that the defendant is currently facing charges of defrauding the Commonwealth contrary to Section 29d of the Crimes Act 1914. The defendant was generally vague and unclear about the nature of the offence and denied any intent of deliberate fraud of the ATO.

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Assessment The psychological assessment indicated that the defendant’s level of intellectual functioning was extremely limited, and that he functioned within the mental retardation range (IQ < 70), and his performance placed him in the bottom one percentile of the age equivalent population. No significant difference was found between his verbal and nonverbal abilities, and his problem-solving skills were determined as being equivalent to those of an average 6-year-old child. Measures of the defendant’s verbal ability indicated that he was consistently poor in tasks involving comprehension, vocabulary, and general knowledge. Further, the defendant’s capacity to do basic arithmetic was very poor, and his general thinking style was concrete. The personality profile indicated that the defendant was emotionally stable, and inclined to deal with stressors reasonably well. He was a person who projected traits of conservatism, compliance, confidence, assertiveness and warmth. It was indicated the defendant was not a person overly dutiful or deliberate and had limited trust in others. The defendant’s clinical profile indicated that he was elevated on measures of activity level, grandiosity and self-harm. The defendant satisfied the diagnostic criteria for mental retardation (refer DSM-IV, pp. 39–42). Results provided by the Fitness Interview Test indicated the defendant’s ability to understand the basis of his charges was highly questionable. His ability to respond rationally to the charges was poor, and his capacity to follow the evidence was limited.

Opinion The defendant reports a crime free past history and a relatively normal background. There did not appear any past evidence of fraudulent behaviour nor past problems related to the Australian Taxation Office. It is indicated that in 2001 the defendant incorrectly completed a BAS Statement, where cents were included incorrectly as dollars, magnifying the amount one hundredfold. The consequence of this was to give rise to a significantly greater refund. Given the defendant’s general level of cognitive function and his very limited arithmetic skills, such an error was not surprising — assuming the defendant submitted the material. It was likely that the defendant may not have immediately recognised the magnitude of the error as his general capacity to grasp such estimates was poor. Against a background of ignorance, the defendant presented with a confident facade of pride and competence. Such a facade contradicted the defendant’s actual intellectual limitations, and was likely to give the impression that he was more aware of his actions than he in fact was. It is noted in the defendant’s statement that he had limited dealings with financial matters, and he said: ‘my normal practice was to open the mail and leave it on the kitchen table where my bookkeeper would then deal with them’. It was also indicated by the defendant that he was given 56


advice in relation to the bank statement about a transfer of moneys followed from one account to another, but the person who gave him the advice was deceased, and clarification of what role he may have played in this matter remains clouded. The assessment indicated that the defendant had very limited intellectual skills and functioned within the ‘mental retardation’ range of intelligence. His general problem-solving abilities were equivalent to those of an average 6-year-old child. The defendant was extremely vague when attempting to articulate what he was charged with, to the extent that his responses appeared avoidant. The defendant did appear to have an awareness of the seriousness of the charges and wanted to have them resolved ‘as quickly as possible’. Results provided by the Fitness Interview Test and various cognitive functioning measures indicated the defendant’s ability to understand the basis of his charges was highly questionable. His ability to respond rationally to the charges was poor, and his capacity to follow the evidence was likely to be limited. It was concluded the defendant satisfied the relevant criteria for unfitness in relation to the charges.

Case 2C: A Dementia Case and Fitness A third ‘fitness’ case involved a 72-year-old male who suffered a dementing disorder. He had a confident speech style that made him appear superficially competent. He was also extremely paranoid, belligerent and confused about factual data and fabricated fantasies. The defendant reported that he was facing charges associated with assaulting a neighbour that allegedly occurred 6 years previous. The defendant was unable to identify the name of the neighbour nor details associated with the specific offence. He stated in the past he had been fighting both the council and the police through the court and perceived that they were all against him. The defendant indicated he intended to plead not guilty. He said he did not believe he was unfit to plead. He perceived that were he to be found unfit he would be put in a mental institution for the criminally insane which he did not want.

Background History The defendant reported a family history that was both unusual and bizarre. His reported birth date was unclear while his reported birthplace (Hong Kong, China) was inconsistent with the records. The defendant’s recall of family background information was unusual. He perceived his parents died in various countries (mother in London; father in the Philippines) and that his wife (whose name he could not recall) died (with their six children) in a car accident 30 years previous. A neuropsychologist’s earlier report made no mention of such family history tragedy which suggested potential fabrication. The defendant indicated his general health was poor and he acknowledged problems associated

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with osteoporosis, duodenal ulcers, peritonitis, rheumatic fever and a brain tumour. There appeared evidence of significant surgery to the defendant’s right forehead region. It was also indicated that the defendant had had a significant past history of neuropsychological assessments through the hospital. It was reported that he had significant cognitive impairment, significant impaired memory functioning and significantly impaired frontal lobe functioning. Dementia diagnoses were advanced.

Assessment The defendant’s intellectual functioning indicated that he performed poorly and around the eighth percentile of his age equivalent population (assuming his chronological age was 72). His general problem-solving skills were limited and equivalent to those of an average 5- to 6-year-old child. It was indicated that the defendant’s capacity to organise and plan visual spatial information was poor and he had limited higher order processing abilities. The defendant’s personality profile as assessed by the NEO PI-R indicated he was very high on the Neuroticism factor score, low on the Extraversion, Openness and Agreeableness factor scores and very low on the Conscientiousness factor score. The defendant’s clinical profile as assessed by the PAI indicated he was elevated on measures of somatic complaints, anxiety, phobias, traumatic stress, affective depression, physiological depression, paranoia, social detachment, thought disorder, affective instability, and self-harm. The treatment scales indicated the defendant was elevated on physical aggression and stress. The interpersonal scales indicated the defendant was low on dominance and within the average range for warmth. The defendant satisfied the diagnostic criteria for: • dementia • adjustment disorder with mixed anxiety and depressed mood (refer DSM-IV, pp. 623–627) • delusional disorder of the persecutory type (refer DSM-IV, pp. 296–301).

Fitness Status The defendant satisfied all three criteria of Section 269A of the Criminal Law Consolidation (Mental Impairment, SA; mental illness, intellectual disability, and senility), but most significantly his severe memory impairment and poor frontal lobe functioning was indicative of the dementia disorder (mental health terminology). The results associated with the Fitness Interview Test (Revised) indicated that the defendant was likely to have specific problems understanding the nature of the proceedings, understanding the possible consequences and being able to communicate effectively with counsel. It was indicated that he was disorganised to the extent that he lacked the capacity to

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recall specific details about allegations made against him. Due to his acknowledged limitations with his memory of dates, times, names, etc. it was likely his ability to follow evidence would be poor and he would likely have difficulty following the course of the proceedings. The nature of the defendant’s personality was such that he had a stubborn nature and appeared reluctant to acknowledge his limitations. The defendant was also able to justify much of his paranoid thinking despite its irrelevance. His capacity to improve was most unlikely.

Mental Incompetence From English law the M’Naghten principle has been adopted for determining legal insanity in most western countries. In the M’Naghten case, the defendant attempted to assassinate the British prime minister but mistakenly killed his secretary instead. It was determined that at the time of the offence M’Naghten was ‘labouring under such a defect of reason, from disease of mind as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know what he was doing was wrong’. These two fundamental principles have been adopted to test a defendant’s legal sanity, that is: (i) the ability to know the nature of their actions and (ii) to know its wrongfulness. The irresistible impulse element has since been added in many jurisdictions to include a volitional measure of a person being unable to control their behaviour because of mental disease or defect. The American Law Institute has combined the M’Naghten Standard and irresistible impulse and excluded antisocial/psychopathic abnormality. Similarly in Australia, most states have this combination within their legislation. For example in South Australia, a person is mentally incompetent (if, at the time of the conduct alleged to give rise to the offence, the person is suffering from a mental impairment and, in consequence of the mental impairment (a) does not know the nature and the quality of the conduct; or (b) does not know the conduct is wrong; or (c) is unable to control the conduct. The question of whether or not the person has a defence of mental impairment by reason of incompetence requires the expert to work through a series of stages. First, the expert should outline the relevant legislation. Second, they should summarise the relevant facts associated with antecedent information, offence information, and consequence information. The summary evidence should include reference to witness statements. In this part of the report the expert should merely collate the facts in a systematic and organised manner. When formulated well, the report should enable any expert to review the available data and provide an opinion on the basis of that data from their own specific reference point.

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Legal insanity matters are still not commonly successful defences in Australian courts. They are most likely to succeed in cases where the defendant has a schizophrenic disorder and has committed a serious offence (such as murder). Often the courts have been swayed by confident opinions expressed by psychiatrists with little concern for the legislation. Since 1995 there have been universal changes in mental impairment legislation throughout Australia leading to two major developments. First, the legislation has become a focus for the court. Second, psychologists increasingly have been asked to offer opinions based on the data. The following cases highlight these changes.

Mental Incompetence Cases Case 3A: A Suicidal Robber (R v Bini [2000] SADC 137) This case was a landmark case in the area of mental impairment legislation as it supported two of the most controversial components of the legislation. First, it indicated that a personality disorder was accepted by the court to be a mental illness. Second, that an irresistible impulse defence was successfully argued for the first time in Australian case law.

Defendant’s Charges The defendant was charged with Armed Robbery (×3) and Assault with Intent to Rob Whilst Armed. These offences occurred on: 1. the 23rd December, 1998 at Rosewater, being armed with an offensive weapon, namely a knife, robbed a service station of money in the amount of about $1100. 2. 30th December, 1998 at Murray Bridge, being armed with an offensive weapon, namely a knife, robbed [the victim] of money in the amount of about $400. 3. the 30th December, 1998 at Fullarton, being armed with an offensive weapon, namely a knife, robbed [the victim] of money in the amount of about $750. 4. the 31st December, 1998 at Rosewater, being armed with an offensive weapon namely a knife, assaulted [the victim], with intent to rob him.

Defendant’s Background The defendant was aged 42. He reported a dysfunctional childhood background where he was physically abused by an alcoholic father and sexually abused by his older brothers. He showed limited progress in school and later in his employment. By the age of 18 he was exhibiting self-harm behaviour (wrist slashing) and required regular hospitalisation. He had a number of relationship breakdowns (four) that precipitated situational crises. He was separated from his five children (from three different partner parents). He abused alcohol, had problems associated with anger and gambling and engaged in petty offending. He had constant suicidal ideation from early adulthood and frequent engagement with mental health services. 60


Assessment The psychological assessment indicated that the defendant was a person of average intelligence. His personality was extremely unstable (very high neuroticism) and volatile in stressful situations. The clinical profile (PAI) indicated that the defendant was significantly elevated on measures of somatic complaints, physiological anxiety, physiological-depression, cognitive-depression, borderline features (affective instability and selfharm), egocentricity and alcohol problems. The defendant satisfied diagnostic criteria for: • alcohol dependence (refer DSM-IV, pp. 195–196), • adjustment disorder with depressed mood (refer DSM-IV pp. 623–627) • borderline personality disorder (refer DSM-IV, pp. 651–654).

The Offending Pattern The defendant shows a consistent pattern with the armed robberies. • He held up various retail agencies (service station, hotel bottle shop, shoe shop etc.) • He threatened the vendor with a knife and told them to give him all the money. • He departed the crime scene. • He did not attempt to disguise himself in the act. • He did not interfere with any security devices. As a consequence of the defendant’s behaviour he obtained monies which he either gave away or spent on gambling/alcohol. The defendant felt much remorse after these activities and when apprehended by police, behaved in a way that may well have provoked the police to fire upon him. The pattern was long-standing and the defendant was seeing a treating psychiatrist to control the impulsive behaviour.

Mental Incompetence Defence A defence of mental incompetence in South Australian legislation stated: a person is mentally incompetent to commit an offence if, at the time of the conduct alleged to give rise to the offence, the person is suffering from a mental impairment and, in consequence of the mental impairment – (a) does not know the nature and quality of the conduct; or (b) does not know that the conduct is wrong; or (c) is unable to control the conduct

Part (c) of the legislation was addressed. It was argued the defendant’s thinking pattern was so affected by his mental impairment (borderline personality disorder) that he felt worthless and negative, and engaged in self-harming activities in order to be gunned down by police (a recurring fantasy he had created). Were it not for the defendant’s mental impairment, he would not have engaged in this highly dysfunctional criminal activity. The defendant’s actions were inconsistent with those of

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a typical armed robber where the motives would be to obtain money for self-gain. The defendant’s motives were to engage in offending behaviour as a dysfunctional response to interpersonal crises and unresolved emotional conflict.

The Judge’s Sentencing Remarks ‘I note the strangeness of the behaviour in committing the offence almost a day or so after walking out on bail in relation to the first offence of the 23rd December. I also note the odd behaviour in going back to the same service station that he robbed on the first offence and the almost casual way which the declarations indicate to me that these offences took place. ‘Those factors combined with the uncontradicted evidence of the experts plus the defendant’s medical history sways me to the view that it has been proved on the balance of probabilities that as a result of his mental impairment he was unable to control the conduct which was the subject of the charges and therefore he was mentally incompetent to commit these four offences with which he is charged.’

Case 3B: Attempted Murder of the Defendant’s Mother or Legal Insanity? (R v Clark [2002] SADC 362) In not all cases does the court share the same opinion as the expert. In the following case the evidence seemed clear that the defendant was mentally ill and that his actions of attempting to kill his mother were psychotically driven, but nevertheless a verdict of mentally competent was determined by the Judge.

Objective Facts The evidence established that police officers attended at premises at a house in [...], at about 7.44 pm on Wednesday, 29 January 2003 as a result of a 000 call from the defendant. The defendant said in that call, ‘I think I killed my mum with a hammer.’ The operator asked him where he was, and he replied, ‘[...]. Please hurry, she’s ... she’s still breathing. She’s making a funny noise.’ At the house, they located [Ms Y] lying on her left side in the hallway. [Ms Y] was bleeding heavily from a depressed skull fracture on the left side of her head. The defendant was naked and crouching over [Ms Y’s] body. He had blood on his chest and neck and both arms. He had lacerations across both forearms that appeared to be self-inflicted. He was later charged with attempted murder.

Defendant’s Background The defendant reported he was adopted soon after birth, and that he perceived his adopted parents to be his actual parents. He said he did not know the identity of his real parents nor did it worry him. The defendant indicated that his adopted father was violent and alcoholic, and the

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defendant was subjected to witnessing domestic violence. The defendant indicated that aged around 4 his adopted parents separated, after which he was raised by his adopted mother. The defendant indicated he had a difficult time at school, and found it hard to fit in. He reported he found the academic work very hard, and he was frequently truant. The defendant indicated that in adolescence he developed a keen interest in listening to music, and learnt the lyrics of various songs by heart. The defendant had a fascination for reading about serial killers and that the Yorkshire Ripper was a focus of his interest. It was noted that the defendant was aware that the Yorkshire Ripper had used a hammer to kill his victims. The defendant left school aged 14 and began abusing alcohol and marijuana. At that age he also began roaming the streets at night looking for prostitutes (potentially) to kill, and it is reported that on one occasion he broke into a neighbour’s house intending to kill her but did not. It was indicated that at that time he was ‘responding to voices of the devil’. The defendant indicated that from an early age he made attempts to kill himself through overdose, stabbing himself with a knife and electrocution. The defendant first came to the attention of mental health services when he was 16 and was assessed as having a psychotic illness. Two years later he was first admitted to a psychiatric hospital, with positive symptoms of a schizophrenic disorder (auditory and visual hallucinations, paranoid ideation and delusional thinking). The defendant was subsequently treated on an ongoing basis with antipsychotic medication. The defendant’s condition was frequently unstable, and a range of antipsychotic medications was tried with varying success. During periods when the defendant was not hospitalised, he lived with his mother, and reports indicated that he was at times violent towards her and had also expressed threats towards the neighbour. The defendant’s mother’s statement indicated she had perceived her son ‘had become more violent over the past few years’.

Assessment The psychological assessment indicated that the defendant was a person of limited intelligence and his overall intelligence was assessed to be within the ‘borderline’ range (fifth percentile of the age equivalent population). The defendant’s nonverbal abilities (or problem-solving skills) were significantly impaired and within the mental retardation range, bottom 1 percentile. This compared with his general ‘verbal’ abilities that were within the ‘average’ range and around the 34th percentile. The defendant’s personality profile indicated that he was in the high range for the Neuroticism factor score, in the low range for the Extraversion, Openness, Agreeableness and Conscientiousness factor scores. Such a personality profile indicated that the defendant perceived he generally coped poorly under stress, and tended to act out in a dysfunctional way. He reported having very limited trust in others, and tended to be

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stubborn and single minded. He did not see himself as competent, achievement focused and was generally disorganised. The defendant’s clinical profile indicated he was significantly elevated on measures of conversion symptoms, somatic complaints, anxiety, traumatic stress, depression, irritability, hypervigilance, schizophrenia, affective instability, identity problems, self-harm, antisocial behaviour, stimulus seeking behaviour, alcohol problems and drug problems. On the treatment scales, the defendant was significantly elevated on measures of‘attitude to aggression, physical aggression, suicide ideation, and nonsupport. The interpersonal scales indicated that the defendant was very low on dominance and within the average range for warmth. The defendant satisfied the diagnostic criteria for: • schizophrenia of the paranoid type (refer DSM-IV, pp. 285–286) • adjustment disorder with mixed anxiety and depressed mood (refer DSM-IV, pp. 623–627) • borderline personality disorder (refer DSM-IV, pp. 651–654) • antisocial personality disorder (refer DSM-IV, pp. 645–650).

Mental Impairment Defence The defendant’s clinical history of involvement with mental health services, his responsiveness to medication and the assessment of his symptomatology indicated he satisfied criteria for mental impairment within the definition of mental illness. The defendant’s primary diagnosis was schizophrenia of the paranoid type. A person was considered to be mentally incompetent, if as a result of their mental impairment the person either: (a) commits an offence and does not understand the nature of the offence; or (b) commits an offence, and does not understand the offence was wrong; or (c) commits an offence and was unable to control the conduct because of the mental impairment. In January 2003 the defendant was living with his mother and during the day the defendant’s mother provided him with a video of the film Nightmare on Elm Street, which the defendant had requested to watch, and which was likely to cause images of violence. The defendant’s mother stated that after lunch she went to her neighbour’s house and returned at about 6.30 pm. According to the mother, the defendant glared at her in a disapproving manner because she had been at the neighbour’s place. The defendant felt very angry towards the neighbour and had expressed a desire to kill her. He reported that he loved his mother. The defendant indicated that he had had an argument with his mother and that he feared she would leave him. The defendant reported that he impulsively lashed out at his mother with the hammer, hitting her on the back of the head on a number of occasions. He said that his mother was then lying on the floor and then he suddenly realised what he had done. The defendant reported that he rang the emergency number to call the police and ambulance, and then proceeded to cut his 64


wrist and throat and immerse himself in a hot bath believing it would accelerate his suicide. At the time of the offending the defendant experienced acute paranoid and delusional thoughts and believed his mother was planning to leave him and had been influenced by the nextdoor neighbour. Such delusional thinking was consistent with the defendant’s mental illness, and in this respect the defendant’s actions were a desperate response to stop the only person in the world that the defendant could associate with from leaving him. The defendant indicated that following the assault he became aware of the horror of his actions and in a state of despair sought to end his own life. While the defendant understood the nature of his actions post offending it is questionable that at the time of the offending he appreciated his actions and their consequences rationally. Due to the defendant’s mental illness he had a distorted perception of the world and attacked his mother in an impulsive way ‘unable to control the behaviour’. The defendant’s antipsychotic medication was unstable at the time of the offending and police evidence indicated the defendant had not taken his prescribed dosage.

Judge’s Sentencing Remarks ‘In the circumstances I do not rely on the opinion expressed by Dr [A] In any event both Dr [B] and Dr [A] did not see the accused until a substantial period of time after the occurrence of this incident. In my opinion the best evidence of the accused’s state of mind at the relevant time is that obtained closer to the occasion on which he assaulted his mother. This is provided by Dr [C] who saw the accused the morning after the assault while he was still in the [...] Medical Centre. Dr [C] did not think that the accused was demonstrating any signs of his schizophrenia disorder at that time although he was distressed about the fact that he had harmed his mother. Although Dr [D], like Dr [B] and Dr [A], did not see the accused until comparatively recently, I thought he was a good witness who gave his evidence in a completely objective manner and his opinion was consistent with that expressed by Dr [C]. Dr [D] accepted that the accused had been suffering positive symptoms of his schizophrenia on the day in question but nevertheless believed that the accused when assaulting his mother had acted out of anger and not as a result of any inability to control his actions. He considered that the accused knew the nature and quality of his act and knew that what he was doing was wrong. I accept the evidence of Dr [D]. The defence has, therefore, failed to displace the presumption of mental competence. None of the matters contained in s. 269C have been established on the balance of probabilities. I therefore find that the accused was mentally competent to commit the crime of attempted murder.’

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Sentencing The most common reason for courts to ask a psychologist’s assistance is in the matter of sentencing people who are found to be guilty. A judge may find it useful when sentencing a person to have information regarding a number of issues. The following sections will be helpful to experts who are requested to assess issues attached to sentencing: • risk of recidivism • availability of treatment or rehabilitation • likely response to treatment or rehabilitation • ability to cope in the prison system or present any risk of harm to self.

Risk of Recidivism Methods of predicting who will commit further offences (and who will not) are commonly known as risk assessments. Implicit in any attempt to assess risk is the belief that some individuals are less at risk of committing further offences than others. A considerable amount of research over the last decade has sought to identify those factors that are associated with offending, although the focus of much of this work is on predicting violent offending in those known to have committed violent offences. Risk factors are those variables that impact systematically on recidivism, either by increasing or decreasing its likelihood. Predicting whether someone will commit further offences typically involves establishing which risk factors are relevant to the individual case. Professional approaches to assessing risk are typically based on two main approaches, commonly known as the clinical and the actuarial. There has been considerable, and at times heated, debate between practitioners and researchers about the value of each approach. Clinical predictions of risk primarily involve professional judgments about an individual’s likelihood of reoffending based upon a practitioner’s knowledge of that individual. The actuarial approach involves assessing risk solely on the basis of the statistical probability that offenders with a particular set of characteristics will reoffend. Predictions are based on empirically established correlations between a risk measure (typically based on known characteristics of both the offender and the offence) and recidivism. The use of an actuarial instrument with a particular offender results in a statement to the effect that ‘Mr [X] scored [A] on this risk assessment instrument. Individuals with these characteristics, on average, reoffend at [Y]% over 5 years’. A third method, the clinically adjusted actuarial approach (also known as the structured professional judgment model), involves the use of one (or more) actuarial instruments followed by adjustments based on clinically derived case considerations.

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There is a consensus within the scientific community that purely clinical approaches to risk assessment possess inadequate interrater reliability and predictive validity. This means that clinical assessments of risk are not only likely to be less accurate that actuarial assessments, but also that different assessors are more likely to reach different conclusions. Therefore most experts in this area recommend the use of actuarial risk assessment methods. The Australian Psychological Society in their Guidelines for Working with People who Pose a High Risk of Harm to Others (2005) suggest that members ‘working in contexts of increased risk will need to be informed about the structured and systematic assessment of risk’ (p. 1). Clinical judgement can then be used to highlight particular factors associated with the individual case that are likely to be important. A common recommendation is to use an approach that employs actuarial tools to obtain a probabilistic estimate of recidivism as well as structured guidelines to provide an overall estimate of risk, then to use this estimate as a basis from which to consider changes in dynamic risk factors. Incorporating professional judgement in any final classification of risk is important when applying any estimate of risk to an individual case. This is because while purely actuarial approaches provide estimates of how likely it is that offenders with similar profiles will reoffend, they do not offer information about the risk presented by a particular individual. A difficulty arises in knowing how to interpret a risk score obtained on an actuarial risk assessment measure in cases where the assessed person has no previous history of offending. Risk assessment tools have been developed on the basis of the characteristics of known offenders who are subsequently reconvicted of further offences (see glossary). They have not generally been developed or validated for use with people who have not previously offended and, as such, caution must be applied when using such assessments with this group.

Availability of Treatment or Rehabilitation In matters involving sentencing, it is important that the report provide details regarding: • whether or not the person has previously engaged in any rehabilitation programs • the nature and duration of any rehabilitation programs • the client’s perception of the programs in changing their behaviour • whether the programs were aimed at adolescents or adults • what is the client’s level of willingness and motivation to participate in future programs recommended by the court (should that be an option) • what rehabilitation programs are available for the client • whether the client has special needs (e.g., low literacy skills).

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Offender rehabilitation programs that are typically offered in Australia follow a generalised model of service delivery: that is, they are usually delivered to groups over a specified number of sessions and target either specific offence categories or what have been termed criminogenic needs. The information contained here is drawn from a report by Howells et al. (2004),† and details those programs offered at that time by Departments of Correctional Services. A list of programs can be found in Appendix 1.

Sexual Offender Programs The rehabilitation of sexual offenders presents particular challenges, largely due to the heterogeneity of the group and low base rates of known reoffending. Most commonly, sex offender programs take a victim-centred approach. Their primary aim is to reduce the likelihood of sexual reoffending, thereby protecting the community and potential victims. Typically, they involve challenging offender denial and seeking their acceptance of responsibility, reducing cognitive distortions, reducing deviant arousal and fantasising, developing victim empathy and an understanding offencerelated behaviour, and seeking to put in place relapse prevention strategies. In Australia, six jurisdictions deliver sex offender programs (refer to Appendix 1). In general, sex offender programs are of high intensity, that is, greater than 100 hours in length, and are delivered over extended periods. A number of programs are delivered in therapeutic communities. Violent Offender Programs Violent offenders have a range of criminogenic needs that can be targeted by intervention programs. Persistently violent offenders have been shown to have greater needs than nonpersistent violent offenders or nonviolent offenders, particularly in the areas of substance abuse, employment, personal/emotional stability, community functioning, criminal attitudes, associations and marital and family relationships (Serin & Preston, 2001). Three jurisdictions currently deliver intensive custodial-based violent offender programs, although Victoria and South Australia have recently introduced violent offender treatment programs. Cognitive Skills Programs Cognitive skills programs are based on the theoretical premise that offending behaviour, for some, is linked to inadequate thinking skills, such as interpersonal problem solving, moral reasoning, cognitive style, self-control and perspectivetaking. Programs typically seek to enhance the following skills: self-control, critical reasoning, problem solving, interpersonal perspective-taking, sociomoral decision-making and victim awareness, and to prevent offender relapse. All departments reported delivering or piloting a cognitive skills program, with three jurisdictions implementing the ‘Think First’ program. In general, these programs are viewed as foundational programs where core skills can be developed and built upon during subsequent offender rehabilitation. †

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Reproduced with the permission of Professor Kevin Howells.


Anger Management Anger management programs are typically based upon the general assumption that the risk of violent reoffending can be reduced through helping offenders manage their anger more effectively. A cognitive–behavioural treatment of anger would include an educational component, while seeking to implement methods to control physiological arousal, to cope with provocations, to change cognitions and beliefs about provocations, and to improve general coping styles. Anger management programs are delivered in six of the eight correctional jurisdictions. The intensity of these programs ranges from 12 to 50 hours. Drug and Alcohol Programs The close association between substance use and offending suggests that the provision of substance use programs for offenders should be a major area of rehabilitative activity. Many different types of rehabilitation programs have been developed that are designed to meet the diverse needs of offenders. These range from health education programs — that aim to minimise the harm that substance use causes and to assist prisoners make decisions regarding treatment programs available to them at a later stage in their sentence — through to intensive residential treatment programs. All jurisdictions deliver drug and alcohol programs. Of interest is the, generally speaking, low intensity of programs offered, with the majority running for 20 hours or fewer. Victim Awareness Programs Victim awareness programs seek to promote understanding of the concept of the victim, explore the role of offending and the creation of a victim, and discuss issues around offenders taking responsibility for their offending. Two jurisdictions deliver the same victim awareness program. However, it should be noted that violent offender, domestic violence, and sexual offender programs also involve discussion of similar issues. Domestic Violence Domestic violence programs offered in Australian jurisdictions are designed, typically, to educate men about gender and power in relationships. Their goal is to prevent violence or controlling behaviour through an offender’s acknowledgement of personal responsibility and skills-based relationship training. Most jurisdictions deliver domestic violence programs. In Australia these programs are of low to medium intensity (20–72 hours). Two jurisdictions have specifically designed programs for Indigenous perpetrators of domestic violence.

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Likely Response to Treatment or Rehabilitation There have been a number of major reviews of the effectiveness of offender rehabilitation programs, each has reached broadly similar conclusions. In the United Kingdom, James McGuire presented evidence to the Home Affairs Committee of the House of Commons on the effectiveness of rehabilitation programs. McGuire reviewed 10 meta-analytic studies conducted between 1985 and 1996, based on a cumulative sample of over 50,000 offenders. McGuire reported that all of these studies (of rehabilitation programs) reported positive effect sizes (+0.10 to +0.36) in recidivism (i.e., those who have attended programs reoffend 10% to 36% less than those who do not attend programs). In North America, the United States Congress commissioned a major report regarding the effectiveness of crime prevention programs and practices including a review by Doris Layton MacKenzie of rehabilitation outcome studies (National Institute of Justice, 1997). MacKenzie concludes that ‘the proportion of studies reporting positive evidence of treatment effectiveness varied from near 50% to 86%’, and that ‘rehabilitation is effective in reducing the criminal behaviour of at least some offenders’ (pp. 12–13). In Europe, Redondo and colleagues have recently completed a meta-analysis of 32 studies involving 5715 offenders in European countries. They reported an overall effect size of +0.15 for programs over a 2-year follow-up period (which translates into a reduction in recidivism of 15% for those attending the programs). A comparable finding in Europe was reported by Losel (1995) who argued that, on average, offenders who attend rehabilitation programs have a 10% lower re-arrest, reconviction and re-incarceration rate. These studies, when taken together, offer consistent evidence that offender rehabilitation programs can have a positive effect in reducing recidivism, with reductions in recidivism of between 10% and 36%. It is therefore possible to say to the court that programs are likely to be effective in reducing the risk of recidivism. It is also clear, however, that programs that select appropriate candidates for treatment and that target areas for rehabilitation directly related to offending, are likely to be more successful than those that do not. Canadian researchers such as Andrews and Bonta have put forward five principles for selection: risk, need, responsivity, professional discretion and program integrity. The Risk principle suggest that higher-risk offenders benefit more from rehabilitation programs than low risk offenders; the Needs principle suggests that programs should meet individual offender criminogenic needs, and the Responsivity principle suggests that programs would be responsive as possible to the characteristics of individual offenders and, for example, assess motivation for treatment and target weak motivation. A list of typical offender needs that are related to recidivism (that is criminogenic needs) would include procriminal attitudes, criminal associates, substance abuse, antisocial

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personality, problem-solving skills and hostility or anger. These are the targets for many of the treatment programs described above. Offenders vary with respect to their treatment needs and motivation and this in turn affects their responses to intervention. For example, because offenders often view their behaviour as unproblematic, they can feel coerced into treatment. Their compliance may be due to the perceived personal consequences for refusal. They may minimise the effects of their behaviour on others, deny personal responsibility and rationalise their actions. It is also important to assess the likelihood that the defendant will genuinely engage in treatment.

Ability to Cope in the Prison System or to Present Risk of Harm to Self Risk factors for prison self-harm and suicide can be grouped into four categories: personal, contextual, historical, and clinical risk factors (Howells et al., 2002). The grouping of personal risk factors comprises characteristics of the individual. These characteristics include stable aspects of the person, such as demographics, traits and dispositions, but also state factors such as responses to recent stresses, or problems adjusting to imprisonment. The experience of recent stressful life events is markedly elevated in prisoners who self-harm. These stressful events include threats to personal relationships, domestic problems, loss events and a variety of stressors associated with prison life such as bullying, intimidation, isolation and disturbing psychological symptoms. Prisoners held on remand have consistently higher self-harm rates than convicted prisoners. In some studies local prisons have also been found to have higher rates, but this may be an artefact and due to other differences between local and nonlocal prison populations. There is consistent evidence that self-harm rates are higher within the first week of imprisonment. Livingston (1997) suggested this may be due to the problems of adjustment to prison and to powerful feelings of trauma, isolation, separation, shame and embarrassment at this time. Other relevant factors may include a recurrence of psychiatric symptoms, or drug withdrawal. Asphyxiation (hanging) and cutting are by far the most common methods used for self-harm in prisons. The availability of materials to perform acts of asphyxiation or cutting constitutes an external risk factor. With some consistency, individuals who self-harm in prison have been found to have a high frequency of previous self-harm, both during previous terms of imprisonment and also outside of prison. Research has also shown that a substantial proportion of prisoners who self-harm are dependent upon narcotics prior to incarceration. There is evidence that self-harming prisoners have experienced particularly disruptive early family life, and that experiences of physical and sexual abuse are common, although family

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disruption and abuse are common features in the backgrounds of offenders in general, not just in those who self-harm. Current and past psychiatric morbidity and psychological distress in general are higher in prisoners who self-harm, but it is likely that particular disorders are more significant than others. High anxiety and neuroticism have been reported in self-harmers, both within and outside prisons. For a small proportion of self-harming prisoners, the act of self-injury itself may have anxiety-reducing functions. In addition to depression and anxiety, a range of psychiatric disorders have been shown to elevate the risk of selfharm, particularly schizophrenia and substance abuse/dependency. With some consistency, elevated depression has been identified as an antecedent for self-harm incidents in prisoners, as it has for self-harm and suicide outside of prison. One feature of depressive thinking that is strongly correlated with self-harm is hopelessness characterised by pessimism about the future and a sense that nothing will change.

Sentencing Cases Examples Writing reports that are used to assist the Judge in sentencing cases usually are not controversial as it is the writer’s job to assist the judicial officer with information about the defendant. The relevant issues are those related to the defendant’s psychological profile, their rehabilitation prospects and motivation for change. Only when a judge or magistrate has been excessively harsh with the penalty (or in some cases too lenient) and an appeal is instigated does the writer have direct feedback about their input in any formal way. The following provides an example of a matter that was successfully appealed.

Case 4A: A Young Drug Offender (R v Constantiou [2005] SASC 466) Objective Facts The defendant was committed for sentence to the District Court, having pleaded guilty in the Magistrates Court to possessing a controlled substance for sale, contrary to s 32(1)(e) of the Controlled Substances Act 1984. The defendant had in his possession 37 ecstasy tablets, and one tablet containing methylamphetamine.

Background The defendant indicated that his parents separated when he was aged around 1 year and that he was predominantly raised by his mother until the age of 16 and then lived with his sister. The defendant reported a ‘positive’ relationship with his mother and an indifferent relationship with his father who he said had been violent towards him when he was young. The defendant reported that during his schooling he did not experience any major problems in primary school, but that around the age of 14 he began to exhibit significant behavioural problems at

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secondary school, which ultimately led to him being ‘asked to leave’ an independent private school. He said he continued to experience problems attending a state high school, and left school at age 16. The defendant reported that his physical health was good but he experienced mental health problems particularly in relation to his temper where he said, ‘I just snap.’ He also stated that during the year he had been actively suicidal with his thinking and his inability to develop a closer relationship with his father led him to become more frustrated. The defendant indicated that at age 16 he saw a psychologist, but said it did not have any major impact on him. The defendant reported that he began abusing alcohol at age 16, and said that it made him ‘more aggressive’. He said from age 16 he used marijuana on a daily basis and perceived it helped him to relax. The defendant indicated that he first used amphetamine at age 17, which he said had an initial positive effect on him, but said that he had problems when he was ‘coming down’. The defendant indicated that he had also used ecstasy and cocaine from age 18. The defendant stated that he had no history of offending as an adult, and that he was charged with possession of ecstasy for supply. The defendant said that in the past he had not participated in any formal rehabilitation programs, but was seeing a drug counsellor and was happy to participate in any programs recommended by the court.

The Assessment The assessment indicated that the defendant functioned within the ‘borderline’ (70 < IQ < 79) range of intelligence, and that his verbal abilities were significantly superior to his non-verbal abilities. The defendant’s general problem-solving skills were poor and equivalent to those of an average 10-year-old child. The defendant’s personality (based on the NEO PI-R) profile indicated that he was in the low range for the Neuroticism factor score, Openness factor score and Agreeableness factor score, in the average range for the Conscientiousness factor score and in the high range for the Extraversion factor score. The defendant’s clinical profile (based on the PAI) was significantly elevated on the measures of activity level, thought disorder, affective instability, antisocial behaviour, stimulus seeking behaviour, drug problems and alcohol problems. The defendant’s treatment profile indicated that he was elevated on all subscales of the aggression scale but perceived he had reasonable control over his stress and had good support from family and friends. He indicated he was currently not actively suicidal. On the interpersonal scales, the defendant indicated that he was high on ‘dominance’ and high on ‘warmth’. The defendant satisfied diagnostic criteria for: • alcohol abuse (refer DSM-IV, pp. 194–204) • cannabis abuse (refer DSM-IV, pp. 215–221)

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• amphetamine abuse (refer DSM-IV, pp. 204–212) • aantisocial personality disorder (refer DSM-IV, pp. 645–650).

Opinion and Recommendations The defendant reported major problems with aggression, and stated that he had an explosive temper which got him into trouble. The psychometric assessment indicated that the defendant had an angry attitude, and in conflict, was likely to lash out both verbally and physically. The defendant stated he had believed his aggressive feelings had emanated from issues related to the family, and particularly his relationship with his father. The defendant reported a desire at one level to get closer to his father, and a sense of distance from past experiences of his father’s violence towards him. It was indicated that the defendant had used drugs as a way of coping with his emotions, and this usage exacerbated his problems. When the defendant experienced emotional problems and feelings of anger, he abused drugs as a way of dealing with his emotions. The following rehabilitation options were recommended: 1. That the defendant be referred to an anger management program, the type of which is run by the Department of Community Corrections. 2. That the defendant continue to be involved with a drug and alcohol counsellor, who may assist him develop strategies for ending his drug usage and educating him in relation to the negative effects that drugs have had upon him.

The Judge’s Sentence The defendant was sentenced to 2 years and 3 months imprisonment, with a non-parole period of 12 months. But for his plea of guilty, the sentencing judge would have imposed a sentence of 3 years imprisonment.

The Appeal Finding The Appeal Court determined that offences of ‘possessing prohibited drugs for sale’ frequently result in an immediate custodial sentence, but in some cases it is appropriate to suspend the sentence. The difficulty for sentencing judges was to ensure that sentences give effect to the intention of the legislature and the personal circumstances of the offender, including the prospects of rehabilitation. The Appeal Court was usually reluctant to interfere with the exercise of a sentencing judge’s discretion not to suspend a sentence. In this case, however, it was considered that the sentencing judge failed to give sufficient weight to the combined effect of the defendant’s youth, his mental age and abilities, his immaturity, his lack of a prior criminal record, and the steps he had taken towards his own rehabilitation. The defendant had strong support from his family and had continuing employment. As a consequence of his arrest, the defendant had received an enormous shock and had realised for the first time, the seriousness of his offending and had sought professional assistance. His prognosis for rehabilitation was 74


good. He was a young man with a low intelligence and a consequent failure to appreciate the seriousness of his conduct. The Appeal Court concluded that the sentencing judge’s approach paid insufficient attention to the combined effect of the defendant’s circumstances. The Court determined that a merciful approach should have been [taken as] there was good reason to suspend the sentence.

Case 4B: A Grief-Stricken Teacher ‘Out of Control’ (R v Regan No. SCCRM-03-137 [2003] SASC 287) A further example of a successful appeal against the sentence is indicated in the next case that also highlights the value of a good report.

Defendant’s Background The defendant reported a relatively unremarkable background history where he had supportive parents who put him through a private education and provided him with positive supports. The defendant indicated that his first major life stress occurred when he was aged 16 and his then girlfriend became pregnant to him and he became a father at aged 17. The defendant indicated that this event had the effect of changing his life focus in order to support his girlfriend and young child, and rather than continuing his education, he found employment in a cleaning business and fast food outlet. The defendant indicated that as a mature age student he returned to study in 1988, completing a Bachelor of Arts Degree and Diploma in Education. The defendant reported that he taught at high school for the next 7 years and enjoyed that vocation until he became progressively more depressed. The defendant indicated that his father died in 1997 and he found his loss was extremely distressing. The defendant stated that in 2001 his level of depression became so significant that he could barely get out of bed to go to work. The defendant indicated that he terminated his employment and was paid out his superannuation because of his poor mental health status. The defendant indicated that his drinking habits had increased and he lost his licence on three occasions for ‘drink driving’. The defendant indicated that he was introduced to drugs (amphetamine/heroin) when his mood state was at its worst and he found it gave him some immediate relief. The defendant stated that he soon became an addict, and his life went ‘out of control’. The defendant indicated that he spent all his money on drugs — including his superannuation payout, his house and all his possessions. It was indicated that the defendant was subsequently charged with offences of serious criminal trespass’ and larceny. The defendant acknowledged that at the time he was heavily abusing drugs, and has no recollection of his offending. He stated that his fingerprints were found on the stolen objects and by implication he said he must have been involved. The defendant stated that soon after the offending

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he admitted himself to a drug and alcohol rehabilitation program, where he remained for 9 weeks. The defendant indicated that he had abstained from using drugs since the program and looked towards re-establishing his life in a more productive way.

Assessment The psychological assessment indicated that the defendant was a person of average intelligence, and there was no obvious difference between his verbal and non-verbal abilities. The defendant’s personality profile indicated that he saw himself as being emotionally stable, but elevated on traits associated with ‘depression’, ‘anxiety’ and ‘impulsivity’. It was indicated he was open about his feelings and emotions, not overly compliant and saw himself as reasonably competent and self-disciplined. The defendant’s clinical profile indicated he was significantly elevated on measures of anxiety, affective depression, thought disorder, antisocial behaviour, stimulus seeking behaviour, alcohol problems and drug problems. The treatment scales indicated he was elevated on suicide ideation and non-support. The interpersonal scales showed he was high on ‘dominance’ and low on ‘warmth’. The defendant satisfied DSM-IV diagnostic criteria for: • • • • •

opioid dependence (refer DSM-IV, pp. 247–255) amphetamine dependence (refer DSM-IV, pp. 204–212) alcohol abuse (refer DSM-IV, pp. 194–204; in remission) generalised anxiety disorder (refer DSM-IV, pp. 432–436) adjustment disorder with mixed anxiety and depressed mood (refer DSM-IV, pp. 623–627).

Opinion and Recommendations The assessment indicated that the defendant was a person who was prone to experience anxiety, and had much difficulty dealing with it. In 1994 it was indicated that the defendant commenced a teaching career, was in a stable relationship and was coping generally well with his life. He reported his life was going smoothly until 1997 when his father died from cancer and the defendant indicated that he became more and more distressed. The defendant indicated his father had been a drug and alcohol counsellor and following his death the defendant began drinking more heavily. The defendant indicated that in 2001 the defendant found the stress of teaching too great and reported being unable to get out of bed to attend his workplace. The nature of the defendant’s profile would suggest that he experienced heightened anxiety associated with teaching, and this compounded with his other stresses (family issues) to create an overwhelming state of distress. It was indicated that by mid-2001 the defendant had resigned his teaching position and received a superannuation payout. The defendant indi76


cated that he commenced a new relationship, and that his new partner was a significant drug user. The defendant indicated that he was introduced to drugs in 2001 and found the drugs provided relief from his anxieties with their usage. The defendant indicated that his life changed dramatically as his drug addiction took control. The defendant stated that during that time he used all the money he had from his superannuation, lost his house, lost the contents of his house, lost his possessions, lost access to his child, lost his friends, lost his respect and lost his desire to live. In a state of helplessness the defendant reported that he engaged in offending behaviour, but because of his level of intoxication, recalled little detail of his offending. The defendant indicated that to date he has completed a 2- and a 1-week rehabilitation program through the Drug and Alcohol Services Council, and a report from his counsellor suggests a positive change. The defendant indicated that since his arrest in December 2002 he has remained drug free. The defendant acknowledged the severity of his addiction and reported improved relationship with his mother since he had stopped using drugs. The defendant states that he was also attending Narcotics Anonymous, and had established a program to facilitate his continued abstinence. It was noted that the defendant wished to pursue a career in the area of drug counselling (similar to his father) and to study to obtain relevant qualifications in the future. The assessment indicated that the defendant continued to experience heightened anxiety, and a specific mental health referral was indicated to address this problem. It was recommended that the defendant be referred through his general practitioner to a relevant mental health professional where he might learn techniques other than the use of drugs to moderate his levels of anxiety. It was also noted that the defendant was elevated on aspects of depression (‘affective depression’) and this would appear to be linked to his current state of despair. Finally it is noted that the defendant reports a high level of ‘suicide ideation’, and future intervention should take into account this issue. Because the defendant had a very sound premorbid background, his prospects of positive rehabilitation were reasonable. A period of incarceration may have a significant negative effect on his general rehabilitation.

Sentencing The defendant pleaded guilty to one count serious criminal trespass and one count larceny — value of goods stolen $50,000. The defendant was given a head sentence of 4 years and an 18 months non-parole period.

Sentencing Appeal An appeal was made on the grounds that the head sentence was manifestly excessive and the sentencing judge erred in failing to suspend the

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sentence. The appeal was subsequently allowed and head sentence of 2 years and 6 months with a 15 months non-parole period was suspended upon the defendant entering into a good behaviour bond with appropriate conditions for continuing rehabilitation. Justice Bleby in outlining his reasons for upholding the appeal stated: ‘There can be no doubt that the appellant’s offending was driven by his drug addiction. That, in turn, appears to have been induced by an untreated clinical depression associated with his father’s death. It would appear that the appellant, as a result of the crisis in his most recent relationship and his arrest for this offence, has reached a watershed in his life. Not only has he now acknowledged his past slavery to drugs for which he has had appropriate and so far successful treatment, but he has also had treatment for his underlying depression. He has made a genuine attempt to address his problems. In that regard he has had and has been prepared to accept support from a number of community organisations and members of his family. He has demonstrated commendable progress. However, the road to non-dependence on drugs from a life of dependence is a rocky one. So far, to his credit, he has managed to stay on it but he is not yet at the end of that road. In those circumstances an immediate custodial sentence will do little to deter the appellant from offending again. It may well have the reverse effect. If his long-term rehabilitation is to be successful, he will continue to need access to, and will depend upon, the support facilities to which I have referred. They are not accessible in the prison system. The undisputed evidence from Dr A is that imprisonment may have a significant negative effect on his rehabilitation.’

Case 4C: The Samurai-Sworded, Duck-Dressed Robber (R v Khon Ding Pham No. 565/2006) The following case provides an illustration of a bizarre armed robbery where the offender was desperate for drugs. This case includes a summary of the judge’s sentencing remarks that were published on the Internet.

Defendant’s Background The defendant reported a very difficult childhood. He stated his parents separated when he was aged around 5 and that he had a negative relationship with his biological mother. He indicated he was largely raised by his auntie, although he said his relationship with her had deteriorated over the past 3 years. The defendant reported a limited relationship with his biological father. The defendant stated in the past he had had one significant relationship, but said that ended due to his drug usage. He reported a mixed education background but said he ultimately was expelled for fighting and truancy. The defendant indicated he had a limited employment history as a chicken packer and oyster opener. He indicated that his general health had been good, but

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deteriorated when he was using drugs. He said that his mental health was poor and said that he still had difficulty coping with some of the childhood abuse he had from his mother. The defendant reported that he began abusing marijuana at age 16, heroin at age 17, amphetamines at age 18, ecstasy at age 19, cocaine at age 22 and benzodiazepines. He stated that the various drugs provided him with temporary relief of his emotional problems, but created significantly greater problems. The defendant indicated that although he had been on drug rehabilitation programs he had continued using. The defendant indicated that he was first convicted of offences when he was aged 17 and was selling heroin to support his own habit. He stated he was currently facing charges associated with aggravated robbery, assault, and using a false name. The defendant indicated at the time he was desperate to obtain money to purchase drugs and also was highly intoxicated on a multitude of substances. It is indicated that the defendant attempted to rob a tavern and held one of the employees at knife point while obtaining monies. The defendant was soon arrested after being restrained by witnesses. The defendant indicated he also had a significant gambling problem that had begun from the age of 18. He said that when he was using amphetamines his gambling problems escalated.

Assessment The psychological assessment indicated that the defendant was of limited cognitive ability and functioned within the ‘borderline’ range of intelligence and around the 7th percentile of the age equivalent population. No significant difference was found between his verbal and non-verbal abilities. The defendant’s personality profile indicated he was within the average range for the neuroticism andextraversion factor scores, and low on the openness, agreeableness and conscientiousness factor scores. The clinical PAI profile indicated the defendant was elevated on measure of physiological anxiety, hypervigilance, resentment, thought disorder and drug problems. The treatment scales indicated the defendant was elevated on non-support. The interpersonal scales indicated the defendant was within the average range for ‘dominance’ and very low on ‘warmth’. The defendant was likely to satisfy the relevant diagnostic criteria for: • • • • •

opioid dependence (refer DSM-IV, pp. 247–255) amphetamine dependence (refer DSM-IV, pp. 204–212) cannabis dependence (refer DSM-IV, pp. 215–221) paranoid personality disorder (refer DSM-IV, pp. 634–638) antisocial personality disorder (refer DSM-IV, pp. 645–650).

Opinion and Recommendations The assessment indicated that the defendant was a person who had become dependent upon drugs and coped poorly with stress. It was 79


indicated that the defendant had limited cognitive abilities and was inclined to act impulsively when disinhibited. The defendant stated that at the time of the offence he was desperate for money in order to maintain his heavy drug habit and in this state attempted to rob a tavern. The current assessment indicated that the defendant had problems in areas of: 1. drug usage 2. impulsive behaviour 3. gambling. Accordingly, it was recommended: 1. the defendant be referred through the Drug & Alcohol Services Council for an appropriate rehabilitation program in relation to relapse prevention 2. the defendant be referred to a cognitive skills program, the type of which is run through the Department of Community Corrections. The defendant’s impulsive nature was likely to bring him into regular conflict with the law if unabated, and exacerbated by his substance use 3. In relation to the defendant’s gambling problem it was recommended he be referred to a gambling cessation program, for example a psychologist familiar with treating gambling behaviour.

Judge’s Sentencing Remarks ‘Khon Ding Pham, you are guilty of committing aggravated robbery and assault occasioning actual bodily harm at Regency Park on 26 February 2006. ‘Count 1 is that while armed with a samurai sword and a hunting knife you robbed an employee of the Regency Tavern of the sum of $2000. ‘You entered the tavern through the gaming entrance just after 8.30 pm wearing a yellow duck outfit as disguise and carrying a samurai sword and a hunting knife. You walked straight up to Victim 1 who was counting the till at the coin dispenser. There was a plastic bag nearby and you told her to fill the bag with notes. She called out for help from another staff member. When she did that you moved behind the counter and grabbed her, holding the samurai sword and the hunting knife together against her throat and demanded again that she fill the bag with notes. She could feel the cold of the blade pressing harder and harder against her throat as you became more agitated because customers were starting to approach the area. She had no choice but to do as you told her and she put the money in the bag. ‘You then grabbed the bag of money and ran towards the door. You had to slow down because there were automatic sliding doors and, as a result, as you reached the car park one of the patrons, Victim 2 managed to get

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hold of you and bring you down. During the struggle to apprehend you, Victim 2 was cut on his left ear which caused heavy bleeding. Other customers soon caught up and helped hold you until police arrived a short time later and arrested you. ‘Count 2 is assaulting Victim 2 occasioning him actual bodily harm. ‘All the money was recovered. You have been in custody since that time and it is appropriate that this be taken into account as part of your sentence. ‘After you were arrested, police discovered your car in the hotel car park. It had its engine running ready for a quick getaway and duct tape had been put over the registration plates to hide the number. You have said that you have no real memory of the events of that night. Whatever of that, it is clear that quite a bit of planning went into this and so you knew what you were doing. ‘You heard Victim 1 in court when she read out her victim impact statement. This was a terrifying ordeal for her. For very good reasons she believed that there was a good chance that she would die. You heard her describe the thoughts she had about her children while you had the blades against her throat. ‘She described at some length how this has affected her, her partner and her children. I need not repeat all the personal details that she so frankly spoke about in court. You heard her. The position can be summarised by saying that she has needed a good deal of help and some medication to overcome the emotional and psychological effects of what you did to her. It has greatly affected her ability to trust other people and her ability to do her work. It was necessary for her partner to take time off work to assist in various ways. She now feels unsafe, and at times unsafe even in her own home. There have been ongoing effects from the trauma on her children. Commonsense tells us that her recovery will be a slow process and that there will some permanent legacy. ‘Victim 2 chose not to present the court with a victim impact statement but once again, commonsense tells us that this was a traumatic event for him. Because of his courage you were captured straightaway. ‘You are young. These crimes were committed on the day after your 23rd birthday. Apart from the submissions of your counsel, I have considered the helpful report of the psychologist Dr A dated 18 August 2006. I need not repeat all the details. I order that a copy of Dr A’s report be sent to the Department for Correctional Services. ‘You have had a difficult life, with a dysfunctional childhood. You became dependent on illicit drugs at an early age. At the time of this offending you were a heavy user of amphetamines, ecstasy and heroin and it appears that the motive was that you wanted money to get more drugs. You have been assessed as being in the borderline range of intelligence with paranoid and 81


antisocial personality disorders. Part of that is an inclination to act impulsively when disinhibited. Given that you had taken some of these drugs a short time beforehand, it is likely that they played some part in the way you behaved. However, although that may offer some explanation for what you did, it is in no way an excuse. ‘You have some prior convictions but nothing that even remotely approaches the magnitude of this offending. Your earlier offences have been mainly associated with motor vehicles although there are a couple of others, including possession of heroin for sale which was heard in the Children’s Court. ‘The two offences were part of the one single course of conduct involving the robbery and your attempt to escape and it is therefore appropriate for there to be a single sentence to cover both counts, that is, as I said during submissions, a sentence which is appropriate in the overall circumstances involving both offences. ‘You entered pleas of guilty at a very early stage and for that the law ensures that you will receive a discount on what the penalty would have been otherwise. In taking that into account, however, I must also have regard to the fact that the case against you was very strong. ‘Members of the community working in jobs such as that of Victim 1 often alone or, as here, separated from other employees and handling money are vulnerable, and deserve as much protection as the law can reasonably provide against violent and terrifying conduct like this. While the penalty must, of course, take into account the matters personal to yourself, it must also act to deter not only you but others who might be tempted to commit crimes of this type. ‘To cover both counts, were it not for your plea of guilty I would have sentenced you to 8 years in prison but, after taking that into account, the sentence is 6 years 6 months with a non-parole period of 4 years.’

Other Issues Over many years, experts have been requested to provide opinions in criminal cases about the mental state of defendants that may or may not suggest the defendant had the capacity to form ‘an intent’ to commit a crime. All crime is assumed to consist of two elements: the physical conduct associated with the crime (actus reus) and the mental state or level of intent, associated with the crime (mens rea). To convict a person, the prosecution must prove beyond reasonable doubt that the defendant committed the offence with the requisite mens rea for the crime. Mental health professionals have offered opinions in Australian legal cases on matters associated with mens rea that have suggested the defendant may not have the capacity at the time of the offence to form intent if at the time the defendant was: 82


• not in a relevant conscious state (e.g., automatism defence) • lacked the capacity to control the offending behaviour (e.g., battered woman syndrome). It is important to recognise that the mens rea enquiry is distinct from the insanity/incompetency enquiry. This is because a person who may satisfy the legal insanity criteria may theoretically and practically have the appropriate mens rea. This means that an insane offender may form the intent to kill someone, but may not at the time appreciate the wrongfulness of the behaviour.

Automatism Automatism is defined broadly as a state in which a person’s mind processes do not accompany their physical behaviours (people can act without being aware of what they are doing). There is considerable debate within the professional community of psychiatrists and psychologists as to the causes of automatism. One main subtype is termed insane automatism or mental disorder automatism — it may be caused by medical conditions such as cerebral arteriosclerosis, brain tumour, or high blood sugar, these conditions are internal to the individual and therefore likely to recur. The other main subtype is sane automatism or nonmental disorder automatism, it can be caused by head injury, psychological blow, or low blood sugar, such conditions are considered to be transient or fleeting states that are external to the individual and therefore unlikely to recur. The greatest controversy surrounds the classification of psychological blow automatism, which is described as an event or experience ‘so catastrophic or devastating to the individual that they cannot control their physical actions’ (Wells & Wilson, 2004, p. 170). In particular, the role of expert evidence regarding this complex condition is the subject of considerable critical debate, with some authors suggesting that cases of psychological blow automatism provide opportunities for psychiatrists and psychologists to overstep the boundaries of their legitimate areas of expertise, in the absence of definitive scientific knowledge concerning the condition. We suggest this is an area where you are prudent to exercise extreme caution!

Battered Woman Syndrome While a precise definition of battered woman syndrome has yet to be agreed upon by psychological and psychiatric experts, in Australia and many other western countries (e.g., US, Canada, UK and New Zealand) it has been the predominant means of ‘packaging’ for the courts evidence about domestic violence and its impact upon women who have experienced domestic violence. In general terms, battered woman syndrome describes the psychological consequences that result from living in an abusive relationship, which includes depression, decreased self-esteem, and learned helplessness. It has 83


been described as ‘a distortion of thought and perception, impaired ability to perceive and realistically appraise alternatives, and delusions regarding the batterer and relationships’ (Schopp et al., 1994, as cited in Bradfield, 2002). Recent arguments have been made that the jurisprudence in Australia needs to move beyond the ‘narrow and distorting’ psychological construct of battered woman syndrome, toward the use of broader social framework evidence. The purpose of such specialised evidence is to enable judges and juries to understand the woman’s experience of violence, having particular regard to issues of power dynamics, constraints against exiting violent relationships, and culturally diverse communities. An understanding of the systemic nature of domestic violence is relevant to claims of self-defence, in particular issues such as the imminence of threat, the nature or seriousness of threat, and the magnitude (proportionality) of force used. Jurors may benefit from an understanding of the seriousness and ongoing nature of threat in such a context, rather than viewing domestic violence as episodic where there may be no imminent threat. There is some empirical evidence to suggest that expert testimony in regard to the experiences of battered women who kill their abuser can lead to more lenient verdict decisions. For further reading in regard to this issue see works by Bradfield (2002), Schuller et al. (2004), and Freckelton and Selby (2002).

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chapter

5

Civil Compensation Issues

T

he expert is mainly required to provide an opinion in civil matters where a plaintiff has suffered an impairment and compensation has to be calculated. The expert’s opinion relates to the extent of injury suffered from an event such as an accident, or victimisation by another. Claiming compensation for psychological injury can be a difficult and timeconsuming process. As Knapp and Van de Creek (2003) put it: The process of litigation has, in and of itself, subtle pressures to maintain a sick role. The process of questioning and continuing to focus on their problems may undercut the natural process of recovery and dissuade clients/patients from putting the trauma in the past and getting on with their lives. (p. 74) Although there are other methods for calculating an individual’s overall level of impairment, the principal reference guide used in all states and territories of Australia for investigating psychological impairment in civil matters has been the American Medical Association’s Guide to Evaluation of Permanent Impairment (Cocchiarella & Anderson, 2001). This guide has frequently been revised and at the time of writing the fifth edition was in use. Controversy with the guide has largely been directed at the final stage of the assessment process, rather than at its general approach to assessment. That is, debate has centred around the means by which an individual’s ‘whole person impairment’ is determined. The importance of this issue is paramount, because it comes closest to addressing the essential legal compensation question of ‘How much is the person impaired?’ Somewhat ironically, the most damning criticism of the guide’s approach to this measurement has been headed by the principal author who reported that such an overall impairment 85


measure had ‘doubtful scientific validity’. Various professional bodies and associations, including those representing psychiatry, psychology and the law have also expressed concern. In general, few would argue against the basic principles identified by the AMA Guide. As successive editions have emerged, so too has greater clarification for assessors, and greater elaboration with improved methodologies. In the most recent edition, greater emphasis has been placed on such factors as the individual’s motivation for improvement, the individual’s pre-accident personality, and the use of psychological tests. The AMA Guide also emphasises the need to assess the effects of medication on the individual’s condition, the effects of rehabilitation, and factors relevant to the individual’s motivation. The Committee of Disability and Rehabilitation of the American Psychiatric Association advised the authors against the use of percentages when the fourth edition of the guide was produced, and this advice has remained in the fifth edition. This reflects an ongoing concern about the use of percentages in determining the final measure of impairment that a mental disorder may cause. The danger with percentages is that they may be used inflexibly by adjudicators, who then become less likely to take into account other factors that influence mental and behavioural impairment. The AMA Guide recommends that all assessments include: • measures of the person’s pre-accident status • a determination as to whether the person has a compensable psychological condition • a determination as to whether the psychological condition is a direct consequence of the accident • a longitudinal history of the psychological condition • an appraisal as to the effect the psychological condition has upon the individual’s general level of functioning.

Assessing ‘Pre-Accident’ Status A person’s pre-accident functioning level can be determined by collating data from a variety of sources including: • friends and relatives • past school reports • workplace reports • medical and other health reports • mental health reports • past accident reports • past rehabilitation reports • past treatment reports. 86

CIVIL COMPENSATION ISSUES

If an expert wishes to establish the level of a person’s pre-accident cognitive functioning, psychometric testing may be useful in providing an estimate. Such psychological tests may include the National Adult Reading Test (NART), the Wechsler Test of Adult Reading, and the Vocabulary subtest of the WAIS-III. These tests all measure an individual’s ability to read aloud increasingly complex words, which is a skill relatively impervious to the effects of brain injury. One relatively common method used by experts to determine a person’s premorbid level of functioning has been the Global Assessment of Functioning (GAF) Scale which is provided in Axis V of the DSM-IV (APA, 1994). This instrument provides a 100-point scaled measure of a person’s psychological, social and occupational functioning, based on a hypothetical pre-accident estimate of that person’s global functioning. At one extreme (GAF = 100) the person would be considered to be functioning in a highly superior range, where life’s problems never seem to get out of hand, and the individual is often sought out by others because of their positive qualities. A person at this level has no apparent psychiatric or psychological symptoms. At the opposite end of the scale (GAF = 1), the measure provides an indication of the individual’s inability to maintain minimal personal hygiene and/or the expression of extreme levels of suicidal ideation. Relatively recent work by First (1996) has sought to use computer technology to improve the general reliability of GAF measures, and is widely accepted throughout North America.

History of Previous Accidents One of the more complex determinations for an assessor is when a claimant has been involved in more than one previous accident. In such cases, the assessor must estimate the extent to which a prior accident or accidents have contributed to the person’s impaired functioning. In order to provide an accurate opinion, the assessor should obtain detailed information about the previous accident(s). In particular, the assessor should obtain: (a) details about the nature and physical injuries sustained from the previous accident(s) (b) any previous psychological or psychiatric assessments related to the previous accident(s) (c) details of treatment associated with the previous accident(s). Insurance companies consider it important to know whether or not compensation was paid in previous accidents, how quickly the individual recovered from their injuries, the nature of any permanent impairment sustained from previous accidents, and whether or not the previous accident involved civil litigation.

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History of Previous Psychological Impairments Relevant to any assessment is the individual’s pre-accident mental health status, and whether they may have had a previous mental health diagnosis. In this circumstance, the assessor must determine to what extent the accident under investigation may have further exacerbated the individual’s preaccident impairment. In some instances, it may be argued that the impact of an additional trauma has a disproportionate effect on the individual’s mental functioning. Alternatively, the current accident may have little or no additional effect on a claimant’s mental health status. In some situations, the matter is further complicated when a person may have a pre-accident mental illness (e.g., schizophrenia), and then as a result of the accident may develop a range of additional symptoms. It is the role of the assessor to determine the nature of any psychological changes that may have occurred, and to determine the extent to which any changes were a direct consequence of the accident.

History of Past Psychological Treatment If the individual being assessed has received previous psychological treatment, then details associated with the efficacy of such treatment are important to understanding the potential responsiveness of the person to further treatment. If the individual has a positive past history of treatment, where they showed significant improvement following intervention, an opinion of ‘positive prognosis’ is more likely. If, however, past treatment indicated either a lack of motivation or lack of efficacy, then the individual’s prognosis for recovery is more likely to be poor.

Does the Person Have a Compensable Psychological Condition? Determining whether the person has a compensable psychological condition involves establishing whether they have a mental health diagnosis that fits the legislative guidelines for compensation. These legislative guidelines vary, so it is important to be familiar with the legislation in the jurisdiction in which you are working. To help determine whether a person has a compensable psychological condition, the expert would be wise to make a systematic examination of the following areas: • background information about the person (including family history, education background, vocational background, health, mental health, substance use, and criminal history) • details of the current accident, and past accident history • collateral information about the individual obtained from family members, friends, work colleagues and so on

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• • • •

previous reports (psychological, medical, educational, vocational) past treatment background a review of past daily living activities, and psychological testing.

Taking histories and summarising the material contained in previous reports is a relatively straightforward process for competent clinicians. However, appropriate and intelligent use of psychological tests is a more acquired skill that requires a good understanding of both clinical and legal issues. The assessment of psychological conditions is described in Chapter 3 of this book.

Was the Psychological Condition a Direct Consequence of the Accident? Many psychological and other clinical reports seem to assume that there is a direct causal link between the accident and the psychological injury, rather than clearly articulating the relationship between them. This is a fundamental issue, because if other factors besides the accident in question can be associated with the cause of the condition, then the individual’s claim for compensation is likely to be severely diminished. As such, a thorough and competent psychological report should explain whether, and how, the accident directly contributed to, or caused, the psychological condition. In the simplest situation, the person has no previous history of accidents or mental illness, and there is a single episode causing a specific psychological response. Here, the logical connection between ‘accident’ and ‘psychological condition’ is relatively clear-cut. However, for the majority of cases, such simplicity is uncommon, and frequently there is a need to provide an explanation about the causal link. In assessment, the assessor should always seek an explicit statement from the claimant about their reasons for a causal link. This is an important component of the assessment interview, as it is of direct relevance to the claim. In some situations, an accident may directly cause additional injuries that in turn are likely to cause major psychological problems. An example of this may be illustrated in the following case.

Case 5A: Indirect Psychological Complexities in a Civil Matter Ms X was a 24-year-old female who had an extremely positive pre-morbid background. She excelled academically at university, gained a first-class Honours degree in Economics, and had worked as a highly successful businesswoman. While driving in the country Ms X was involved in a motor vehicle accident, and received injuries to much of her body. Of particular significance was the fact that Ms X was 3 months pregnant at the time of the accident. She believed on medical grounds that the child she was carrying may have been significantly impaired as a result of the accident. Ms X was a person with conservative religious beliefs, and felt

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ethically opposed to abortion. Nevertheless, because she believed the foetus was likely to have been significantly impaired by the accident, she underwent an abortion. Following the accident and the abortion Ms X exhibited extreme traumatic stress symptoms, in addition to being highly suicidal. To a large extent, Ms X had suppressed information related to her abortion because of her embarrassment about such disclosure, and because it conflicted with her moral and ethical views. Only after some period of additional investigation did she disclose the full details of the situation to the assessor. Two years following the accident it was indicated that Ms X had recovered fully from her physical injuries and from the traumatic stress symptoms directly associated with the accident. She remained, however, in a state of considerable distress related to the emotional conflict she continued to experience associated with her termination decision.

A psychological report would identify the stresses in Ms X’s history to include: • psychological injuries from the car accident (e.g., increased anxiety associated with car transport, PTSD symptoms related to the accident) • psychological injuries from having had an abortion (depressive symptoms linked to conflict between religious values and the behaviour). Ultimately the assessor must attempt to weigh the respective psychological components in order to gauge the overall level of impairment that can be attributed to each element. Using a simple rating scale, and asking the client to offer a rating, is a comparatively simple means by which an initial selfreport rating can be determined.

Longitudinal History of the Psychological Condition Has Treatment Precipitated the Assessment? In most circumstances where a person is physically injured in an accident, they receive treatment for physical ailments before a full assessment is carried out for compensation matters. In mental health matters a similar sequence of service provision would appear logical. Unfortunately, this is rarely the case. It is common for individuals to be naïve to the fact that their psychological condition is impacting on their daily living, and they are often unaware that effective treatment may be provided. In situations when psychological treatment has commenced prior to assessment for compensation, it is the role of the assessor to obtain full details associated with that treatment. Information should be sought from the individual (and, if possible, their treating clinician) with regard to: • when the treatment began • frequency of treatment sessions

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• • • • •

duration of treatment type of treatment intervention success of treatment intervention future prognosis expected conclusion of treatment if not concluded.

In situations where therapy has been undertaken, it is prudent for the assessor to obtain written authority from the client for the release of information about the effectiveness of treatment in relation to the psychological condition. It is also important that the treating therapist offer an estimation regarding the expected duration of further treatment, and a rationale for that continuance. In situations where no therapy has been undertaken it is the task of the assessor — based on their assessment of the psychological impairment — to determine whether or not treatment is indicated, and the general duration of that treatment.

How Long After the Accident was the Psychological Assessment? The length of time between the accident and subsequent referral for psychological assessment often varies considerably, from several weeks through to several years. Court dates are inevitably delayed, and it is common for legal matters to finally be settled several years after an accident. The length of time between accident and assessment can have important effects on that assessment. The amount of time that has elapsed can influence: • the immediate psychological impact of the accident • the longer-term psychological problems • whether or not treatment has taken place • the additional stress associated with the individual undergoing assessment for compensation. As a general rule, it is best to conduct the assessment within 6 to 12 months after the accident. At this stage it may be anticipated that general symptoms would have stabilised and treatment would be occurring. If the assessment is too soon after the accident, the individual may be experiencing acute symptoms that may resolve. If the assessment takes place too long after the accident, too many potential intervening factors may have impacted upon the individual’s life that would logically affect the assessment. This would, therefore, reduce the face validity of the assessment. Some assessors in the past have attempted to measure such things as the impact of child sexual abuse on an individual when the abuse occurred 30 years previously. Such assessment is generally likely to be reactive to other life events rather than reflect the direct 91


consequences of the abuse. The weight of legal credibility is inevitably likely to challenge these data and their value might best be left to the treating clinician rather than the psychological assessor. There is some evidence that predispositional factors indicative of early resolution and psychological recovery are more likely if an individual is low on the Neuroticism factor of the NEO PI-R (Costa & McCrae, 1992). White and Stargatt (1998) examined a group of motor vehicle accident victims with mild whiplash injuries, who had not received any formal psychological treatment 12 months after their accident, and who continued to complain of significant psychological distress. This group was compared with a matched group who had been diagnosed with similar physical ailments, but who did not report major psychological problems. Comparing the characteristics of both groups, those individuals in the ‘poor psychological recovery’ category tended to be elevated on Neuroticism and low on Agreeableness. Such a pattern seems logical, suggesting that because these individuals’ personalities were orientated to being more emotionally unstable, antagonistic, and resentful of others, they were therefore more likely to experience and report psychological distress. A further significant issue in civil compensation matters relates to ‘compensation stress’. Many individuals report that when seeing a plethora of ‘experts’ following an accident, most ask them the same questions, and few appear to believe their answers. Some individuals state that if they had known beforehand that they would have to go through as many assessments, and see as many clinicians, they probably would not have sought compensation for their problems. A potential consequence of this circumstance is that the claimant may tend to exaggerate their symptoms to the assessor in order to emphasise their impairment. The importance of attempting to measure this ‘compensation stress’ is fundamental to the evaluation process. One way of ascertaining the possibility of exaggerated complaints is to use the PAI (Morey, 1991). The ‘negative impression of self’ scale (NIM) of the PAI measures the extent to which a person deliberately seeks to present a negative impression of their symptoms. When scores on this measure exceed two standard deviations from the mean (that is greater than or equal to T = 70), deliberate exaggeration of symptoms is potentially indicated.

Has the Condition Changed Over Time With or Without Treatment? A critical question in assessing a person’s psychological condition following an accident is whether or not the condition is stable. Both time and treatment are factors that may influence the progression of a psychological condition. If the assessor is required to measure change in the claimant’s condition over time, then such an evaluation can only be determined by

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looking at the person’s condition over two time periods. Full assessment therefore requires an initial assessment period, which should be followed up by a further assessment period (e.g., approximately 6 to 12 months after the initial assessment). In this way, the effects of time alone, as well as any treatment, can be determined. Without at least two assessment periods, inferences of change are purely hypothetical.

Measuring the Level of Impairment Courts and compensation authorities seek measurements of impairment that are clearly quantifiable such that an individual’s level of functional loss can be readily determined and allow for the calculation of compensation. Unfortunately, in the field of psychological injury this formula is rarely straightforward and never simple. As a consequence, various guides have been forthcoming to assist the assessor with means for determining a calculation of impairment leading to functional loss. We review these approaches below.

American Medical Association Guides The American Medical Association (AMA) recognised the need for standardised assessment in relation to injuries sustained from accidents. While their primary focus was on physical injuries, it was also identified that consistent standards were required when assessing psychological injuries. The AMA Guide offered definition for terms related to impairment, and definition of how such impairment may lead to functional limitations or the inability to perform activities of daily living. In determining these definitions the AMA Council on Scientific Affairs utilised four separate authorities: • previous guidelines • the World Health Organization • Social Security administration • the states worker’s compensation statute. In the AMA Guide, ‘impairment’ was taken to mean that there had been damage to the individual’s health status so as to interfere with their activities of daily living. More generally, the World Health Organization defined impairment as ‘any loss or abnormality of psychological, physiological or anatomical structure or function’. A ‘permanent impairment’ referred to an impairment that had stabilised and was unlikely to change. In evaluating impairment, the AMA Guide considered both anatomical and functional loss. ‘Anatomic loss’ referred to damage to the organ system or body structure, and ‘functional loss’ referred to a change in function for the organ or body system. In the AMA Guide, impairment percentages or ratings were developed by consensus-derived estimates. These ratings reflected both the severity of 93


the medical condition, and the degree to which the impairment decreased the individual’s ability to perform common activities of daily living. The impairment ratings were designed to reflect functional limitations and not disability. The whole person impairment percentages were derived in order to assess the impact of the impairment on the individual’s overall ability to perform activities of daily living. These activities of daily living include: • self-care and personal hygiene • communication • physical activity • sensory function • nonspecialised hand activities • travel • sexual function • sleep. The criteria initially used to determine impairment percentages could not account for the diversity or complexity of work carried out by all individuals, but could account for activities common to most people. When the AMA Guide sought to develop classifications of impairment due to mental and behavioural disorders, four separate domains of functioning were identified as relevant. These included: • activities of daily living • social functioning • concentration persistence and pace • deterioration or decompensation in work or work-like settings. Each of these four domains of functioning required the assessor to rate the individual’s level of impairment from 1 (no impairment) through to 5 (extreme impairment). The criteria are shown in Table 5.1 below. The second edition of the AMA Guide presented a percentage for each of these respective levels of impairment. These percentage ratings determined that 0% to 4% related to no impairment, 5% to 19% related to mild impairment, 20% to 49% related to moderate impairment, 50% to 74% related to marked impairment and extreme impairment was greater than 75%. From these estimates of individual functioning within each domain, a whole person impairment estimate could be determined. From the third edition of the AMA Guide onwards, it was argued that assessors should not use percentages but instead provide an indication of the ‘class of impairment’. The authors of the guide suggested that while there were valid reasons to use percentages for mental impairment (e.g., consistency with methods used for measuring impairment with organ systems), the use of percentages implied a certainty that did not exist. The

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Table 5.1 AMA Impairment Rating Criteria Rating

General description

Explanation

1

No impairment

2

Mild impairment

The person can carry out most useful functioning

3

Moderate impairment

The person can carry out some but not all useful functioning

4

Marked impairment

The person is significantly impeded with his or her useful functioning

5

Extreme impairment

The person cannot carry out any useful functioning

authors were concerned that percentages would be used in an inflexible manner and would be less likely to take into account the many other factors that may influence mental and behavioural impairment. Finally, the editors of the fifth edition of the AMA Guide argued that when assessing the severity of an individual’s impairment, the following factors should be specifically taken into account: • the effects of treatment • the effects of structured settings • the variability of mental disorders • an assessment of workplace function • the effects of common mental and behavioural conditions. It was strongly argued that assessment should cover all five axes of the DSM-IV when providing an opinion in relation to a person’s level of impairment. The expert should also include a statement regarding the overall level of impairment based on the stipulated criteria. Finally, the fifth edition of the AMA Guide recommended that examiners take into account factors associated with malingering. It was specified that any thorough assessment should examine potential conscious or unconscious exaggeration of symptoms. In situations where malingering was indicated, relevant comments should be forthcoming in the report. The issue of malingering is discussed further in Chapter 7.

Other Approaches to Measuring the Severity of Impairment While most states and territories recommended a framework based on the AMA guidelines for determining an individual’s level of mental impairment, significant changes in relation to the final determination have 95


been evident since the late 1990s. A brief review of the historical development of current approaches in the Australian context is provided below.

The Psychiatric Impairment Rating Scale (PIRS) Version 1 In October 1997, a Victorian panel of medical practitioners headed by Michael Epstein sought to establish a new approach to determining psychiatric and psychological impairment (Epstein, 1999). This approach used a percentage rating to describe the level of psychiatric or psychological impairment that a person developed as the result of an accident. A clinical guide for the rating of psychiatric impairment was published in the Victorian Government Gazette in 1998. It incorporated a number of principles that were to be taken into account by clinicians when carrying out impairment assessments. These principles included: • that the primary method of evaluating psychiatric impairment was the mental state examination • that a DSM-IV diagnosis be determined and used as a guide for the severity and duration of the impairment • that the impairment be determined in the context of the person’s level of functioning, their education, financial, social and family circumstances • that the person’s motivation to improve should be taken into account • that treatment and rehabilitation progress should be reviewed. These guidelines recommended that the client under assessment be rated on a 5-point scale across six domains. These criteria included: • Intelligence (a person’s capacity for understanding) • Thinking (the ability to form or conceive in the mind) • Perception (the brain’s interpretation of internal and external stimuli) • Judgment (the ability to assess a given situation and act appropriately) • Mood (emotional tone underlying the behaviour) • Behaviour (specifically examining behaviour that was disruptive, distressing or aggressive). A 5-point rating scale was recommended in order to represent the level of impairment for each of these domains, with ratings varying from 1 (normal functioning) through to 5 (severe deficit). The severity of impairment ratings are summarised in Table 5.2. Unusually, the above discontinuous ranges are expressed as percentages in the guide. It was recommended that the whole person impairment be determined by calculating the median rating for the six individual impairment ratings. It was further recommended that the overall impairment take into account the person’s level of functioning, and that the global assessment of functioning (GAF) scale from the DSM-IV be used to assist this calculation. 96


Table 5.2 Psychiatric Impairment Rating Scale (PIRS) Version 1 Ratings

Category

Percentage

1

No deficit

0–5% impairment

2

Slight deficit

10–20% impairment

3

Moderate deficit

25–50% impairment

4

Moderately severe deficit

55–75% impairment

5

Severe deficit

Greater than 75% impairment

Epstein (1999) provided a review of this approach by examining responses from 61 psychiatrists who attended a training workshop. He concluded that the method, although relatively crude, was quick and showed a reasonable degree of reliability. Unfortunately, a number of problems emerged associated with this method. These problems included: • No account of the individual’s premorbid state. • No implicit association between the individual having an accident, and it relating to the impairment. • A number of terms used were confusing as they were contradictory to recognised definitions of those terms (e.g., intelligence). • The categories of impairment as stated in percentage terms were disproportionate, adding confusion to their functional meaning. For example, category 1 had a range of 5%, category 2 a range of 10%, category 3 a range of 25%. • The percentage category ratings appeared as a discontinuous scale (e.g., there was no theoretical category for a rating which was between 6%–9%). Logically, from a theoretical perspective the rating measure should represent a continuous scale. The PIRS (Version 1) Victorian method was generally regarded as an important breakthrough to simplify statistically the measurement of percentage impairment. However, the weight of criticism against the approach appeared to undermine its utility, and as such further modification was sought.

The Psychiatric Impairment Rating Scale (PIRS) Version 2 A second version of the PIRS was developed in New South Wales by a working group of medical practitioners, looking to refine the instrument for use in assessing motor accident victims. Accordingly, a paper was published in 1999 entitled ‘Behavioural Consequences of Psychiatric Disorders’ which went through a major review of the psychiatric impairment rating scale and

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Table 5.3 Psychiatric Impairment Rating Scale (PIRS) Version 2 Rating

Category

Percentage

1

No deficit

0–3% impairment

2

Mild impairment

4–10% impairment

3

Moderate impairment

11–30% impairment

4

Severe impairment

31–60% impairment

5

Total impairment

Greater than 60% impairment

made several significant changes. The first major change was a recognition that the criteria for determining impairment should more logically incorporate those criteria recommended by the AMA Guides, rather than inventing new criteria as with the Victorian model. In PIRS Version 2, the following criteria were then adopted: • activities of daily living • social functioning • concentration, persistence and pace • employability. It was indicated that each of these criteria could be rated on a five-point scale from 1 (no deficit) to 5 (totally impaired). Table 5.3 provides a summary of these criteria. Calculation of overall impairment was then determined by the median score of these assessed ratings. Level of impairment reflected a percent of the overall group. A rule was suggested that if the median rating was an exact whole number, the percentage rating would reflect the lower limit of the percentage impairment range. If, however, the median rating was a fractional value, then the percentage rating would reflect the upper range of the impairment. For example, if the median value was calculated to be 2, the level of impairment percentage would be 4%. If, however, the median value was calculated to be 2.5, the percentage impairment would be 10%. While an advantage of the revised PIRS was that it adopted similar criteria to the AMA’s Guide, a number of critical flaws were still apparent. As with the first version of the PIRS, the premorbid state of the individual was not taken into account in the computation. There appeared to be no relationship between the accident and the person’s condition, and category ratings were again disproportionate. The most critical flaw was that a median calculation for determining the overall level of impairment appeared contradictory, representing an average level of impairment rather than an indication of the person’s worst level of impairment. Such an 98


Table 5.4 Psychiatric Impairment Rating scale (PIRS) Version 3 Ratings

Category

Percentage

1

No deficit

0–3%

2

Mild impairment

4–10%

3

Moderate impairment

11–30%

4

Severe impairment

31–60%

5

Total impairment

Greater than 60%

approach tended to minimise the magnitude of an individual’s actual loss. For example, if an individual was severely affected on one criterion but not on others, then the method of median computation would indicate that the person had little or no impairment. This clearly represented an unfair method of calculation.

The Psychiatric Impairment Rating Scale (PIRS) Version 3 A third revision of the PIRS was undertaken by a group of medical practitioners in New South Wales as part of a WorkCover Working Group. They further expanded the criteria for determining impairment to incorporate specific activities of daily living, namely self care and personal hygiene, social and recreational activities, and travel. Thus, the number of relevant criteria increased to 6: • self-care and personal hygiene • social and recreational activities • travel • social functioning • concentration, persistence and pace • employability. These criteria were each rated on a 5-point scale from 1 (‘no deficit’ — 0%–3% impairment) through to 5 (‘totally impaired’ — > 60% impairment). Table 5.4 shows the relevant ranges. To obtain an overall estimate of the person’s percentage impairment, a conversion table was used that matched the individual’s aggregate median rating score with the median rating. While initially this approach appeared to expand on the relevant criteria of the AMA Guide, it contributed to further problems. As with previous versions, this approach did not take into account pre-existing conditions (that is the individual’s premorbid state). No causal link between the accident and the impairment was incorporated, percentage ranges were again inconsistent, the median 99


Table 5.5 PIRS Version 3 Conversion Table AGG Score 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30

Class1 0 0 1 1 2 2 2 3 3

Class2

4 5 5 6 7 7 8 9 9 10

Class 3

11 14 15 17 19 22 24 26 28 30

Class 4

31 34 37 41 44 47 50 54 57 60

Class 5

61 65 70 74 78 83 87 91 96 100

rating implied a necessary unfairness, and the reasoning behind the conversion table was scientifically invalid, as it was a purely arbitrary construction with no conceptual foundation. Empirical testing showed that at best 50% of seriously impaired workers were likely to be misclassified and at worst this percentage was in the order of 70% (Crook, 2002).

The Global Assessment Functioning (GAF) Scale In 1997, a discussion paper was produced by the Victorian section of the Division of Independently Practising Psychologists within the Australian Psychological Society (APS). The paper recommended the formation of a working group to examine the guidelines used in measuring impairment related to mental and behavioural disorders, and surveyed the APS membership. The general consensus suggested that members were unhappy with using the AMA Guide. Accordingly, the APS working group completed a paper that was adopted by the APS Board of Directors in 2000 entitled ‘Measurement of Psychological Impairment in Matters of Civil Litigation’, which was published on the APS web site (www.psychology.org.au). The 100


working subgroup sought to review the strengths and weaknesses of all proposed methods. The working group concluded that the AMA Guide provided a logical methodological approach to assessment, but problems arose with ambiguity in determining the final rating of impairment. It was argued that the various versions of the PIRS attempted to simplify the process, but in doing so ignored essential methodological features. Of greatest concern, it severely underestimated the potential level of impairment in a blatantly unfair manner. The then President of the APS, Professor Paul Martin concluded in an editorial address (Martin, 2002): The mandating of the use of the PIRS for the assessment of permanent psychological and psychiatric impairment in New South Wales compensation context is, we believe, the first time that any professions have had a professional measure foisted on them contrary to their implicit rejection of it — a most offensive and unacceptable precedent. Professor Martin also stressed that the APS and the Royal Australian and New Zealand College of Psychiatrists had collectively expressed their strong opposition to the use of the PIRS, and that such an approach was not only unfair, but could be considered unethical and indefensible in a court of law. In looking to offer a more comprehensive and fair approach to the measurement of functional impairment, the working party of the APS determined that: • such a measure should be acceptable to all clinicians (that is psychologists, psychiatrists, medical practitioners and health professionals) • the instrument should have universal application (both national and international relevance) • there should be a body of literature supporting its use • the instrument should have good inter-rater reliability • calculation should explicitly take into account the person’s premorbid status • the instrument should have wide acceptance in a contemporary context After consideration of numerous possible alternatives, the working party opted to consider the Global Assessment of Functioning (GAF) scale as a primary tool. The GAF scale was originally developed in 1976 by Endicott (see First, 1996). It was introduced to the DSM in 1987, and became the 5th axis of the diagnostic model. The GAF scale was widely used in clinical practice throughout the world, and provided a standard measure of psychological, social and occupational functioning that was both valid and reliable (see DSM-IV, p. 32).

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The GAF scale scores range between 1 (minimal personal functioning) and 100 (superior functioning in a wide range of activities). Empirical support for the GAF as a reliable and valid measure has been established (see First, 1996). The GAF had been extensively applied in a variety of clinical settings within the United States. In particular, the GAF had been used with all patients discharged from psychiatric inpatient units as part of standard practice, and as such a full database of norms for the measure was available. First (1996) stated that the GAF had become the primary instrument for managed care providers in the United States, and he sought to enhance its usage through the development of a computer software package to facilitate more reliable measurement. First (1996) argued strongly that the instrument was an appropriate tool for clinicians requiring a practical measure of a person’s level of functioning. The APS working group sought to use the GAF to first calculate a premorbid GAF score (that is the score prior to any accident). The individual’s postaccident GAF score was then calculated. The total functional loss calculation equated to the relative change in global functioning expressed as a percentage. That is: Functional loss (%) = (GAF premorbid — GAF postaccident) × 100 GAF premorbid Using this equation, an individual who was functioning well prior to an accident with a premorbid GAF score of 90, and was functioning very poorly after the accident (GAF postaccident = 42) would show a percentage functional loss of 53.3%.6 One important feature of the GAF was that it appeared to be consistent with guidelines stipulated for compensation measurement. It implicitly estimated the person’s lowest level of function as its nominal figure both premorbidly and postaccident. While the GAF scale provided a recognised standard measure of impairment, there was criticism that it incorporated two separate and conflicting scales: one that related to symptom severity (associated with a ‘mental illness’) and the other related to functional impairment. That is, the instrument was flawed by incorporating two potentially independent measures.

An Aggregate Psychiatric Rating Scale In 2002, a working group of the APS Worker’s Compensation Group sought to come up with a compromise that would both improve the seriously flawed Psychiatric Impairment Rating Scale, and incorporate some of the more positive features of the GAF calculation. It was recognised that a number of states and territories (e.g., Victoria, New South Wales, and Tasmania) had all legislated the use of the PIRS. Therefore, the most 102


sensible approach was to try and suggest modifications that would reduce the problems that had previously been highlighted. As mentioned earlier, one of the major criticisms of the PIRS concerned the whole person impairment percentage calculation. The PIRS median method required the middle score to be adopted, with the result that when used within a group of six criteria the worst areas of impaired functioning would be ignored. In the interests of greater fairness, it was argued that attention and weight should be given to the worst areas of impairment. A revised process for calculating the level of impairment involved the following steps: Step 1: Calculate the rating for each of the six criteria used in order to include a premorbid functioning rating and a postaccident functioning rating Step 2: Sum the premorbid scores to obtain a premorbid aggregate Step 3: Sum the postaccident scores to obtain a postaccident aggregate Step 4: Calculate the whole person impairment (WPI) percentage as: WPI% = 100 – [(30 — postaccident aggregate) × 100] (30 — premorbid aggregate) Such an approach removed the computation of the median, and provided an overall determination of level of functional impairment as a comparative measure, taking into account the individual’s premorbid status.

Case Examples in Civil Matters Civil cases require the assessor to examine all relevant details of the subject accident to measure what effect the physical and psychological injuries from the accident have upon the person’s life. The assessor also suggests what interventions may be needed to address these issues and assist the person regain their premorbid life functioning. The following sections will examine case studies in the areas of motor vehicle accidents, WorkCover and victims of crime.

Motor Vehicle Accidents Each Australian state and territory has its own third party insurer that may require a psychological assessment of an injured person. These include: NRMA Insurance Ltd in the Australian Capital Territory, Motor Accidents Authority (NSW) in New South Wales, Territory Insurance Office in the Northern Territory, Motor Accidents Insurance Commission in Queensland, Motor Accident Commission in South Australia, Motor Accidents Insurance Board in Tasmania, Transport Accident Commission in Victoria and Insurance Commission of WA in Western Australia. 103


These insurance companies may provide guidelines for psychologists involved with the assessments. For example, in New South Wales the Motor Accidents Authority (NSW) provides a guide for those providing neuropsychological assessments. They state that forming a neuropsychological opinion depends on test results and their interpretation. They argue that interpretation can be affected by the claimant’s premorbid ability, psychosocial history, cultural and linguistic background, prior medical history, chronic pain, current medication, alcohol and/or drug use, level of motivation, psychological status, psychometric issues such as the quality of normative data and practice effects of repeated testing. They state that results should be interpreted in the light of each claimant’s unique background, and evaluated as to whether or not they make neuropsychological sense. The opinion should be clearly stated with a summary of the evidence used in its formulation. They stipulate the following should be considered: • Evidence/lack of evidence that a traumatic brain injury (TBI) occurred. • The evidence should include documented evidence (e.g., changes on CT brain scan, LOC [loss of consciousness], altered consciousness) taking into account any confounding factors. • Did the TBI occur as a consequence of the accident in question? • The severity of the TBI. • Did the current performance on assessment represent an optimal effort by the claimant? • What is the claimant’s current state of cognitive functioning? • Was there evidence of a change in cognitive functioning from premorbid levels? • Was the evidence of change, if any, consistent with a TBI? • What was the course of the change? • Was it immediately apparent? • Did it improve or worsen over time? • What has been the effect on the person’s behaviour, personality, mood and functional restriction in current or future capacity to work and general quality of life? • What is the likely prognosis? The insurance company guidelines seek recommendations for treatment and ask the assessor to specify compensatory rehabilitation if appropriate. The recommendations may also include referral to other agencies such as vocational rehabilitation, ongoing Brain Injury Unit services or referral to a psychiatrist or clinical psychologist for further assessment and management. In some cases, recommending an MRI (Magnetic Resonance Imaging) brain scan may be appropriate.

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When the psychologist provides psychometric results in their report, the guidelines specify that raw test scores and sources of normative data should be given. This is so that a qualified psychologist with access to the manuals and reference material will be able to provide an independent interpretation. The following case is one that involves a whiplash injury. However, even though it was not a head injury case, an assessment was sought to determine the extent of psychological damage.

Case 5B: A Whiplash Injury in an MVA The Subject Accident The plaintiff was involved in a motor vehicle accident when her vehicle was hit by another vehicle, which failed to give way to her vehicle when it entered the carriageway from a left side street. The plaintiff reported she received whiplash injuries from the accident, and these included: injuries to the right of her neck, her shoulders predominantly on the right side and her right upper back and lower back. She reported seat belt bruising to the root of her right neck, left chest, breast, and lower abdomen. She reported bruising to both knees as a result of striking the underside of the dashboard.

Premorbid History The plaintiff stated that her physical and mental health prior to the accident was positive. She said in the past she had had some problems with her knee and had two minor operations but stated this problem was largely resolved. She stated that her mental health was ‘calm’ prior to the accident. She stated that when she was aged around 12 she saw a psychologist for issues relating to ‘anger’, but believed this problem had resolved.

Assessment The assessment indicated the plaintiff was a person of ‘average’ (90 < IQ < 109) intelligence. Her personality profile indicated that she was inclined to being emotionally unstable. She was within the ‘average’ range for Extraversion, Openness, Agreeableness and Conscientious factors. The clinical profile indicated the plaintiff was elevated on somatic complaints, phobias, traumatic stress, hypervigilance, resentment, thought disorder, identity problems, negative relationships and self-harm. The treatment scales indicated the plaintiff was elevated on ‘verbal aggression’ and ‘non support’. The interpersonal scales indicated the plaintiff was within the average range for dominance and very low on warmth. The plaintiff satisfied the DSM-IV diagnostic criteria for: • posttraumatic stress disorder (refer DSM-IV, pp. 424–429) • borderline personality disorder (refer DSM-IV, pp. 651–654).

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Psychological Injury — A Causation of Accident? The plaintiff stated that prior to the subject accident she was reasonably calm in her manner, and had adapted to the stress of raising four children. Following the accident the plaintiff reported that she became more irritable, had regular flashbacks of the accident, thought about the accident all the time, felt anxious when she was driving near the accident scene, felt that her sleeping pattern had changed such that she had difficulty getting to sleep and that she was more inclined to lose her temper. The plaintiff ’s posttraumatic stress disorder symptoms appeared a direct consequence of the motor vehicle accident. The nature of her personality was likely to exacerbate her problems.

Daily Living Activities The plaintiff reported that since her motor vehicle accident her sleep pattern had deteriorated and that she was unable to participate in normal household duties (e.g., cleaning) without taking significant pain relief medication. The plaintiff reported that her first priority was her family, and that at times things had to be done irrespective of how she felt. The plaintiff reported that she experienced significant pain and this was likely to be related to injuries she had sustained from her motor vehicle accident. The plaintiff reported that at the time of the assessment she was undergoing a training program in therapeutic massage. Should the plaintiff ’s physical ailments reduce, such an area of work may have many positive benefits.

Stability of Condition The assessment was carried out 13 months postaccident and many of the plaintiff ’s symptoms had remained unresolved, especially those related to the posttraumatic stress symptoms. With appropriate intervention, these symptoms would likely reduce.

Future Treatment The plaintiff reported that she has not received any psychological treatment. The assessment indicated that the plaintiff was vulnerable to stress, impulsive, and tended to deal poorly with trauma. Her posttraumatic stress symptoms were acute and she exhibited heightened levels of anxiety about the subject accident. It is recommended that the plaintiff be referred to a registered psychologist through her general practitioner who can treat her posttraumatic stress symptoms in the context of her personality type. It was estimated that treatment would likely to take between 10 and 15 sessions over a 12-month period. As the recommended fee (WorkCover guidelines) for 1-hour psychology sessions was $156 per session, it is estimated the cost of treatment would be between $1560 and $2340. The benefits of the plaintiff ’s treatment would be: 106


1. resolution of her traumatic stress symptoms 2. increased emotional robustness in relation to dealing with psychological traumas.

Criminal Injuries Compensation An example of circumstances where a person may seek compensation is if they have been a victim of domestic violence. The Australian Bureau of Statistics (1996) conducted the first national survey on incidence and prevalence of domestic violence in Australia using a representative sample of 6300 Australian women. The study measured the incidence of physical and sexual violence against women during a 12-month period prior to the survey and over their lifetime (since the age of 15). The results indicated: • 23% of women who had ever been married or in a de facto relationship, experienced violence by a partner at some time during the relationship. • 42% of women who had been in a previous relationship reported violence by a previous partner. • 50% of women experiencing violence by their current partner experienced more than one incident of violence. • Injuries sustained in the last incident were mainly bruises, cuts, and scratches, but also included stab or gunshot wounds, and other injuries. • 12% of women who reported violence by their current partner at some stage during the relationship, said they were currently living in fear. • Women who experienced physical or sexual violence by a partner were significantly more likely to experience emotional abuse (manipulation, isolation or intimidation) than those who had not experienced violence. • 35% of women experienced violence from their partner during periods of separation. • Younger women were more at risk than older women, with 7.3% of women aged 18 to 24 years having experienced one or more incidents of violence from a current partner in the previous 12 month period as compared to 1.2% of women aged 55 and over. The following case represents a tragic but typical case of domestic violence in Australia.

Case 5C: A Case of Domestic Violence The Subject Criminal Act The plaintiff was the victim of a violent assault. The plaintiff indicated that she was physically bashed by her former partner, thrown down the stairs, and had her neck strangled. The plaintiff reported that she was of the view that she was going to be killed. As a result of the assault the 107


plaintiff indicated that she received cuts and bruises to her body, and particularly her head. The plaintiff indicated that following the assault she was taken to the local hospital by ambulance where she remained prior to her discharge the following day. The plaintiff indicated that she subsequently received follow-up medical care by her general practitioner. She indicated she had received ‘pain killers’ as treatment.

Premorbid State The plaintiff ’s background history indicated a high level of emotional distress from an early age. She indicated that she was adopted soon after birth, and did not discover the information about her adoption until she was aged 11. She said she resented her adopted parents for the perceived deception. The plaintiff reported that she was the victim of a violent rape when she was aged 15, and that she developed both alcohol and drug problems from age 12. The plaintiff reported that from an early age she became involved in relationships that were often violent and child bearing. She reported that she had her first child at aged 16 and that her then partner had tried to kill her when she was pregnant. She indicated she had a succession of violent relationships and four additional children to three partners. The plaintiff indicated that she had a limited education background, and limited employment background. The assessment indicated that the plaintiff ’s personality style was such that she was inclined to deal poorly with stress and was elevated on traits associated with depression, anger hostility and impulsiveness. Prior to the assault the plaintiff ’s general level of functioning was ‘relatively poor’ and likely to be in the lower range of the normal scale. Her premorbid Global Assessment of Functioning (GAF score) was estimated to be 71 — ‘slight impairment in social occupational functioning’.

Psychological Injuries following the Assault As a consequence of the assault, the plaintiff indicated she had constant fears and nightmares. She said she had great difficulty sleeping, and felt pain constantly in her stomach. She said she was always thinking she was going to be killed, and could not stop her thoughts. She said she felt very angry towards her former partner. The plaintiff indicated that to date she had not seen any mental health professionals. The plaintiff satisfied DSM-IV diagnostic criteria for: • • • •

posttraumatic stress disorder (refer DSM-IV, pp. 424–429) borderline personality disorder (refer DSM-IV, pp. 651–654) multiple substance abuse adjustment disorder with mixed anxiety and depressed mood (refer DSM-IV, pp. 623–627).

Treatment The plaintiff indicated that she received physical treatment for her injuries at the local hospital soon after her assault and follow-up treatment from 108


her general practitioner. She did not indicate she had received any further treatment in relation to her psychological injuries.

Level of Impairment Since the assault the plaintiff was coping very poorly, and reported being in constant fear that she would be ‘killed’ by her former partner. Despite this, it was indicated that the plaintiff was managing to single-parent four children but indicated a high level of distress. It was estimated that the plaintiff ’s Global Assessment of Functioning Scale (GAF) was of the order of 55 — ‘moderate difficulty in social and occupational functioning’. Based on her premorbid state, it is estimated that the plaintiff ’s percentage level of residual disability was 22.5%.

Future Treatment The assessment indicated that the plaintiff had a significant past history of violence perpetrated against her, and her current assault matter has brought these issues to the fore. The plaintiff was likely to require ongoing psychotherapy. It was recommended that she be referred to an appropriate mental health practitioner (female) for intervention. WorkCover recommended fees for 1-hour psychology sessions are $156 per session. Treatment was likely to involve a minimum of 10 sessions.

Work Accidents In a different area of civil compensation matters, Jackson and Clements (2006) reviewed data from 400 preliability assessments in New South Wales and found that approximately 70% of the claims were caused by work-related factors. In approximately 85% of all claims reviewed, evidence was found to suggest that the claimants were suffering from significant distress and could be assigned a DSM-IV diagnosis. Work-related factors such as performance investigations, performance management, exposure to aggressive clients, conflict with colleagues, high workload, the poor management skills of supervisors, transfers and poor person–job fit were likely contributing factors to the worker’s mental health problems. The data suggested that the personality styles were associated with a claim for psychological injury that included: a highly personalised and sensitive reaction to ordinary workplace events (high levels of emotionality), perfectionist traits, a paranoid and distrustful thinking style, rigid and inflexible thinking style, and high levels of self focus. Such personality styles were not in and of themselves problematic at work, but a poor match between the individual’s personality style and the requirements of their role or the culture of the organisation tended to lead to dysfunction, distress and a psychological injury claim. Jackson and Clements (2006) noted that in New South Wales the average cost of psychological injury in a WorkCover claim was $27,798 while 109


the average time off work was 21 weeks. This compared with $18,913 for an average physical injury claim and 8 weeks average time off work (WorkCover NSW Statistical Bulletin 2003/04). Information about psychological services for injured workers is provided on the different states and territories’ WorkCover (Work Health Authority in the Northern Territory) web sites listed below: ACT: www.workcover.act.gov.au NSW: www.workcover.nsw.gov.au NT: www.nt.gov.au/deet/worksafe QLD: www.workcover.qld.gov.au SA: www.workcover.com.au TAS: www.workcover.tas.gov.au VIC: www.workcover.vic.gov.au WA: www.workcover.wa.gov.au The above WorkCover sites also provide guidelines for psychologists in relation to both treatment and assessment expectations. The following case represents a typical scenario for a worker in the hospitality industry.

Case 5D: An Injured Worker Within the Hospitality Industry Work-Related Injury The plaintiff indicated that for the past 2 years while employed as a ‘hospitality worker’ she was required to repeatedly lift heavy objects and as a consequence had experienced problems with back and neck pain. The plaintiff reported that she had persistent headaches and that the nature of her pain was cumulative until she obtained relief through physiotherapy manipulation.

Premorbid Health The plaintiff presented with an unremarkable medical history of past injuries and stated that her general health and mental health were very good.

Assessment The assessment indicated that the plaintiff ’s intellectual functioning was within the ‘average’ (90 < IQ < 110) range and that her personality was such that she was emotionally stable, warm, friendly, open about her values, straightforward, altruistic, stubborn, competent and dutiful. The plaintiff ’s clinical profile indicated she was significantly elevated on subscales that included ‘conversion symptoms’, ‘somatic complaints’, ‘hypervigilance’ and ‘thought disorder’. On the treatment scales the plaintiff was moderately elevated on ‘verbal aggression’, but did not exhibit problems with ‘lack of support’, ‘stress’ or ‘suicide ideation’. The 110


interpersonal scales indicated the plaintiff was elevated on ‘dominance’ and within the average range for ‘warmth’. The plaintiff ’s general mental health was ‘sound’ but she exhibited symptoms consistent with a DSM-IV diagnosis of ‘pain disorder’ (refer DSM-IV, pp. 458–462) and this was likely to be directly associated with her medical condition, namely problems related to her back and neck. It is likely her condition was ‘chronic’.

Causal Relationship The plaintiff’s reported pain was likely a direct consequence of her physical ailments, which, based on the available medical evidence, appear directly associated with her employment as a food waitress.

Effect on Daily Life The plaintiff reported that she had experienced significant problems with sleeping and engaging in social activities with her partner. The plaintiff stated that she had regular headaches which she attributed to her physical health problems. The plaintiff stated that in the future she hoped to start a family, and feared her current problems might affect her motherhood aspirations. She stated that in day-to-day activities she was very limited and was unable to do tasks that she previously did not have problems with, particularly those tasks that involved cleaning and lifting.

Capacity to Engage in her Current Work? The plaintiff reported that largely her physical problems impaired her capacity to satisfactorily complete her work, and there appeared a direct link between her physical problems and her perception of pain. The medical evidence indicated the plaintiff’s capacity to lift was very limited, and this was likely to place a significant doubt about her ability to continue to working in hospitality.

Stability The plaintiff ’s mental health problems were a consequence of her physical problems. Effective treatment of her physical problems was likely to have a flow-on effect with her psychological state and her perception of pain.

Treatment The plaintiff indicated that she was engaged in various physical treatments, including yoga, hydrotherapy and regular physiotherapy (massage manipulation). From a psychological perception, the plaintiff was likely to benefit from exposure to a pain management program that may assist her deal with her pain without the use of drugs. Relaxation techniques and positive mental imagery may also benefit this process. The plaintiff was very conscientious about improving her physical health, and had an intellectual capacity to embrace psychological treatment in a positive way. The plaintiff would benefit from seeing a 111


registered psychologist who can help her with the relaxation and pain management and likely this would take around 8 to 10 sessions. The frequency of treatment will likely depend upon its effectiveness and might initially expect sessions twice weekly for 3 weeks and then less frequently for a further four sessions. Based on the Workcover Fee Schedule the costs associated with seeing a psychologist for 1-hour sessions (WO114) is $156 per session. The total cost would therefore be in the order of $1560. The plaintiff reported a reluctance to use pharmacological aids to minimise her pain, and that this has become a significant problem for her. Psychological intervention may facilitate her reduction in pain and allow her much greater comfort. The plaintiff may find the physical components of working in her current employment too great a problem to overcome and it is recommended she be referred for a vocational assessment. The plaintiff has many skills that would endear her to other areas of work which do not require lifting and which would be relevant to her specific aptitudes that reflect both intellect and pleasant nature.

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chapter

6

Family Court Matters

I

n any psychological consultations for Family Court matters the psychologist is required to provide opinions that represent the best interests of the children. It is immaterial whether the assessor is requested to provide consultation by either parent, an independent child’s lawyer, an agency or by the court. The most frequent matters the psychologists are asked to assist with are who the child should live with and how much time the child should spend with either of the parents. This may also include an assessment of risk factors relating to potential abuse.

Parenting Evaluations Psychologists’ opinions are intended to provide the court with information regarding which parent a child should reside with and how much time a child should spend with a parent, when the parents are unable to resolve this issue on their own. Psychologists are ethically obligated to recommend what is best for the children, regardless of who requests the evaluation. Many factors are taken into account to assess what is best for the children. These may include: 1. Evaluation of the parent–child relationship: • to identify conflict issues between the parents • to measure personality characteristics that may contribute to postdivorce conflict • to measure personality characteristics that may negatively impact on the child • to measure which parent appears psychologically closer to the child.

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(2) Evaluation of the child: • the child’s emotional connection to each parent • the child’s emotional connection to each other sibling • whether the child presents with any significant psychological problems • the child’s adjustment to school • whether the child exhibits behavioural problems • recommendations to improve the adjustment process • the effects that the extended family may have on the child • step-family issues • whether it is possible for the parents to work together for the best interests of the child.

The New Family Law Parenting System Practitioners in this area need to be aware that on 1 July 2006 major legislative changes came into operation. Known as ‘the New Family Law Parenting System’, there are several key components. The Family Law Amendment (Shared Parental Responsibility) Act 2006 is designed to create a major change in the Family Law system and places an increased focus on the rights of children to have a meaningful relationship with both parents. The law not only encourages parents to equally share responsibility for their children after separation, but also requires the court to consider a presumption that both parents will have equal shared parental responsibility for their children. Greater emphasis is placed upon resolving post-separation parenting arrangements outside of the court system. Changes within the court system mean that the resolution of parenting disputes is likely to proceed on a less adversarial basis. The presumption of equal shared parental responsibility means that both parents will be assumed to have an equal role in making decisions about the major longterm issues facing them. These include such matters as major health decisions, which religion a child is brought up in and which school a child attends. It does not amount to a presumption that children will spend an equal amount of time with each parent. The court must consider whether spending equal time with both parents is in the best interests of the child and is reasonably practicable. If it is not appropriate, the court must then consider whether it is appropriate for children to spend substantial and significant time with each parent. This is specifically designed to include weekday time so that both parents have an opportunity to become involved in the day-to-day routine of the children. This marks a significant switch from the weekend parenting role that some parents were forced to accept under the previous regime.

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The ‘best interests of the child’ have always been the paramount consideration of the court and the new legislative changes maintain this consideration. However, they introduce new considerations for the court. Greater emphasis is placed upon the right of children to know both their parents and have a proper relationship with them and on the right of children to be protected from harm. These factors are regarded as the court’s primary considerations. After they have been considered in a disputed situation, the court will then look at a range of other factors including what is in the best interests of the child.

Replacing ‘Residence’ and ‘Contact’ The concept of ‘residence’ under the old legislation has now been replaced with the concept of who it is a child or children live with. The previously existing terms had already replaced older terminology such as custody, guardianship and access. The concept of ‘contact’ has been replaced with the concept of who it is a child or children spend time with. The aim of these changes is to further reduce the sense of proprietorial right that some parents exerted. Psychologists involved in Family Court work will usually be required to prepare an assessment in relation to parenting arrangements as to who a child or children should reside with or how much time a child or children should spend with either parent. Of course, a report may be required in many other parenting issues. Prior to the recent amendments, parents were presumed to remain jointly responsible for the long-term care, welfare and development of children in the absence of an order to the contrary. The parties now apply, if need be, for an order that the parents have equal shared responsibility for a child. If this is done, a court must also then consider whether it is appropriate to make an order that a child or children spend an equal amount of time with each parent. If an equal amount of time with each parent is not deemed to be appropriate, then a court must consider ordering what is called ‘substantial and significant time’. Psychologists will normally be required to prepare a report based upon the instructions of both parents. A psychologist may be asked to prepare a report by one parent only — however, they should be aware that such a report may not ultimately be acceptable to the court. If instructions are received from only one parent, it might be useful to ascertain the use to which that parent believes the report will ultimately be put. Psychologists will often also be asked to assist parents to reach agreement on issues or to resolve parenting issues that have arisen or been identified in a report prepared by another psychologist. A child’s right to know and have a meaningful relationship with each parent is considered by the court to be a fundamental right, and is strongly protected. An assessment is sometimes requested when one parent has made allegations against the other parent relating to psychological problems or behaviour that could have an adverse effect on the child. The best 115


interests of the child take precedence over a parent’s right to spend time with their child, if the facts support a strong risk of potential harm to the child as a result of unrestricted parental involvement. The mere presence of an accusation by the other parent is insufficient, because either parent could be making a false claim to the court regarding parent–child interactions. Further, a parent may choose to err on the side of caution in requesting restrictions on the time that the other parent spends with a child, and that parent’s perception of potential harm may be influenced by conflict with the other parent.

Equal Shared Parental Responsibility Presumption The Family Court’s power to make parenting orders is now subject to a prescription of equal shared parental responsibility. If the prescription is not rebutted then the court must consider equal time or the children having substantial or significant time with parents. Consideration must be given as to whether or not it is in a child’s best interests or reasonably practical for an order to be made. How a court determines what is in a child’s best interest is set out in Section 60cc of the Family Law Act.

Factors to be Considered The best interests of the child remain paramount but there are two primary considerations, namely: (a) the benefits to the child of having a meaningful relationship with both parents (b) the need to protect the child from physical or psychological harm or from being exposed to or subjected to abuse, neglect or family violence. There are a large number of additional considerations, namely: (a) any views expressed by the child and any factors, such as the child’s maturity, or level of understanding (which the Court thinks are relevant to the weight that should be given to the child’s views) (b) the nature of the relationship of the child with each parent and other relevant persons , including grandparents and other relatives (c) the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent (d) the likely effects of any changes in the child’s circumstances including the likely effect of any separation from either parent or any other child or person (including a grandparent or other relative) with whom they have been living

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(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis (f) the capacity of each parent and other person, including any other grandparent or other relative to provide for the needs of the child, including emotional and intellectual needs (g) the maturity, sex, lifestyle and background, including culture and traditions, of the child and of either parent and any other characteristics of the child that the court thinks are relevant (h) if the child is an Aborigine or Torres Strait Islander, the child’s rights to enjoy their culture (including the right to enjoy that culture with other people who share that culture) and the likely impact that any proposed parenting order will have on that right (i) the attitude to the child and to the responsibilities of parenthood, demonstrated by each parent (j) any family violence involving the child or a member of the child’s family (k) any family violence order that apples to the child or a member of their family if the order is a final order or if the making of the order was contested (l) whether it would be preferable to make an order that would be least likely to lead to the institution of further legal proceedings in relation to the child. Without limiting paragraphs (c) and (i) above, a court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, their responsibilities as a parent and in particular the extent that each of the child’s parents: (a) has taken or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child; and (b) has facilitated, or failed to facilitate the other parent: (i) participating or making decisions about major long-term issues in relation to the child; and (ii) spending time with the child; and (iii) communicating with the child; and (c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child. 117


Some of these considerations will clearly be dependent on findings of fact, to be made by the court, but others will be more clearly the focus of the psychologist’s report.

The Family Court Report The role of a psychologist in completing a risk assessment is to determine whether there is any objective evidence of a psychological problem or behaviour pattern that would result in a high likelihood of inappropriate and potentially harmful interactions between parent and child. Presence of a diagnosed psychological problem is insufficient, because many individuals with such problems function adequately as parents, before and after divorce. The psychologist has to address the question of whether there is evidence of a psychological problem that would predict harmful behaviour. Harm can occur either by direct action of the parent, as in the case of child abuse, or it can occur as the result of neglect because of poor parental decision making or judgement. This might include exposing the child to physical or emotional danger, or failing to adequately supervise the child. When completing an assessment it is helpful for the psychologist to interview both parents, although it is possible to obtain information about the allegations made by one parent through a review of the documents presented to the court. Both clinical interviews and psychological tests are used to assess the risk to the child, as well as a review of pertinent court documents related to past domestic violence, child abuse, or other involvement with the courts, and a review of records pertaining to past mental health treatment of either parent. The circumstances of the case will dictate whether the child needs to be interviewed, or whether the parent and child need to be seen together. Very often, the child’s own wishes and interactions with siblings and parents are crucial and the child will need to be interviewed and observations made of their interactions. Past mental health treatment of the child, or the presence of any physical or emotional disabilities in the child, as well as basic information such as their age and academic progress, need to be reviewed. Issues of parental alienation are often present in these cases. The role of the psychologist is to determine whether there is evidence to indicate that a child’s time with the parent, supervised or unsupervised, presents a risk of physical or emotional harm to the child or children. If the conclusions indicate a risk, then the psychologist should recommend action that may reduce or eliminate the risk. The ultimate goal is to make recommendations that are in the best interests of the child in the present, and for the long term. In matters pertaining to the Family Court, psychologists may also be asked to undertake any of the following tasks. • mediate the question of which parent a child will live with or how much time a child will spend with a parent

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• assess parent–child conflict areas and propose remediation plans • supervise a parent’s time with a child when a parent has an emotional or substance abuse problem • evaluate the potential risk to a child when a parent has emotional or substance abuse problems • assess the impact of the grandparent relationship • determine the appropriateness of children spending time with grandparents • screen potential foster parents and/or adoptive parents • complete domestic violence evaluations • assess the potential impact of termination or limitation of parental rights • provide psychotherapy and counselling • provide parent–child family counselling • provide parenting skills training • arrange therapeutic supervision of parent–child times • arrange anger management • arrange divorce adjustment counselling for children and/or adults • arrange parental communication skills training for family members. When preparing a report, the psychologist ideally should include the items listed below. • the reasons for the referral • details of the current arrangements • details of the respective applications of the parties • details of the interviews undertaken for the purpose of the preparation of the report • details of the observations of the children undertaken • details of any other enquiries made of any person such as a school counsellor or GP • details of any information or documentation supplied by either of the parties • the tests applied need to be detailed and described; for example, the Achenbach Child Behaviour Check List and Achenbach Youth Self-Report • the methodology applied should be explained setting out the purpose of the assessment, the sections of the Family Law Act referred to by the assessor, the primary and secondary considerations and any limitations considered appropriate in respect of the assessment and report. The psychologist should be careful about accepting written material. Normally the solicitors representing the parents will supply the material that the assessor is to rely upon. However, sometimes the parties themselves 119


will present material for consideration and, in these cases, the expert should ensure that any such material is agreed by both the parents. If it is not, then it is a matter for the parents and their legal advisors to resolve. The most relevant sections of the Family Law Act to consider are Sections 60B, 60C, 61A, 61B, 61C, 61DA, 61DB, 62B, 62G, 64B, 65D and 65DAA. In preparing a report it may be useful when making observations or recommendations to refer to the particular sections of the Family Law Act that it they relate to. In that way all relevant considerations can be seen to be dealt with. The report should then summarise the interviews with parents and children and any observations of interaction where appropriate. The views of the children and your comments about the children generally need to be set out. A final opinion may comprise a firm view one way or the other or might set out a range of options and recommendations that would most benefit the children. A practitioner can obviously make quite definite recommendations if appropriate but if it is felt that certain matters need to be tested by the court before firm recommendations can be made, then it may be more appropriate to provide a range of options. Practitioners may be asked to assist parties to reach an agreement about children, which can be incorporated in a Parenting Plan — see Section 63C.

Family Court Expert Witness Rules Practitioners working in this field need to be familiar with the Family Court’s rules in relation to the giving of expert evidence. These rules are covered in Rule 15.5 of the Family Court Rules and are reproduced in Appendix 2.

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chapter

7

Issues Regarding Malingering

M

alingering is one area where a psychologist’s assessment can have an important outcome. Forensic clients often have much to gain from a favourable report from a psychologist. In criminal matters this may be a ‘not guilty’ finding due to mental impairment, or a reduced or noncustodial sentence. In civil matters where the issue is psychological injury, the gain may be financial. The DSM-IV defines malingering as: The intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as avoiding military duty, avoiding work, obtaining financial compensation, evading criminal prosecution or obtaining drugs. (DSM-IV, p. 683) The DSM-IV argues that malingering may be suspected if: • the client is undergoing medico-legal examination • there is marked discrepancy between the claimed stress or disability and the objective findings • there is a lack of cooperation during the assessment • antisocial personality traits are evident. A distinction is made between malingering and factitious disorders, which are defined as those where exaggerated or false symptoms may be apparent but there is an absence of external incentives. In factitious disorders, the client is motivated to maintain a sick role by the unintentional production of symptoms or symptoms helped by suggestion.

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The AMA Guide (5th ed.) states: Malingering may arise with mental disorders as well as with nonpsychiatric conditions. Examiners should be aware of this possibility when evaluating impairments. The possibility of obtaining monetary awards and avoiding work increases the likelihood of malingering. Certain symptoms, such as headache, low back pain, peripheral neuralgia and vertigo, are difficult to objectively assess. Conditions that have more of an apparent organic basis, such as appendicitis, a fracture or pregnancy, tend to be more amenable to objective diagnostic studies than are some psychiatric and neurologic complaints. Malingering with supposed psychiatric conditions may be seen in circumstances including the avoiding of an unpleasant duty or requirement, such as going to gaol or entering military service, and may be seen seeking insurance or entitlement benefits. The AMA Guide indicates that malingering may be suspected when the individual’s symptoms are vague, ill defined, over-dramatised, inconsistent or do not conform with the known signs and symptoms. It argues that in such a situation, results of the physical and mental status examinations and other evaluation data may be inconsistent with the nature and intensity of the person’s complaints.

Use of Psychological Tests for Assessing Malingering Psychological tests are an important tool for assessing potential malingering. The literature indicates that a variety of psychological tests has been used to identify individuals inclined to either exaggerate or falsify symptoms. Such tests include: • specific tests of malingering • tests that incorporate a variety of validity or ‘lie’ scales • neuropsychological tests • projective tests • psycho–physiological measures. A selection of these tests are summarised below. Specially designed tests of malingering include: • the Malingering Probability Scale • the Structured Interview of Reported Symptoms (SIRS) • the Test of Memory Malingering (TOMM) • the 15 Item Test; • the Validity Indicator Profile. Tests of this type usually have administration instructions that emphasise the difficulty of the test, and appear complex to a naïve subject. Based on normative sampling, the actual tasks are not difficult. Poor performance in 122

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such tests may indicate the person is deliberately performing at a level lower than their actual abilities. It may then be hypothesised that the person was motivated to perform poorly. Tests that incorporate validity scales include: • the Minnesota Multiphasic Personality Inventory (MMPI-2) • the Personality Assessment Inventory (PAI) • the Multiphasic Sex Inventory (MSI) • the Multidimensional Anxiety Questionnaire (MAQ). Such tests include specific questions that allow the assessor to gauge (on the basis of probabilities) whether the individual’s responses are consistent, whether the individual is giving logical responses to questions, and whether they are showing a pattern of response bias. Morey took these data to a further level of refinement when he developed a Malingering Index made up of eight configural features of the PAI profile. This index provided a measure of the statistical likelihood that an individual was simulating a mental disorder. Neuropsychological tests provide a range of subtle and not so subtle measures that can indicate whether a person is attempting to distort their psychological condition. Tests that have been used in this context include: measures of intelligence (e.g., WAIS-III), memory tests (such as Wechsler Memory Scale — Revised) and general neuropsychological tests (such as Complex Figure tests and the Trail Making Test). These are described in the glossary. Such tests allow the assessor to examine the level of consistency a respondent has, within tests, between tests and when test performance is compared with activities of daily living. Potential malingering may be indicated by any of the following: • The individual obtains correct responses to more complex problems rather than less complex problems. • The individual’s responses are bizarre or overly extreme. • There is inconsistency between general daily functional tasks and performance in tests. An example of inconsistency between test performance and tasks of daily living is if the assessment indicates that the person has a maximum digit span of 3 digits forwards, yet the person successfully mentally encodes and accurately recalls a new 8-digit telephone number. Similarly, individuals assessed as having severe visuo–spatial impairment are likely to have great difficulty reading a map. Projective tests include: • the Rorschach Inkblot Test • the Thematic Apperception Test • the Sentence Completion Test.

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Psychologists can use projective tests (these are measures of personality) as a part of a more general assessment battery to examine an individual’s response pattern. It is not so much personality issues that are relevant in suspected malingering cases, but rather the qualitative response style. Indications of potential malingering may relate to the person being very reluctant to participate in this type of assessment, which is largely unstructured. Alternatively, the person may provide extreme or bizarre responses, inconsistent with those likely to be demonstrated by an individual with genuine clinical symptoms. Using projective tests provides variety for the assessor in terms of novel test material, and a break from more structured tests. Psycho–physiological tests (that is polygraphs — galvanic skin response measures) have had limited application in the area of investigating malingering, but they are used extensively in detecting deception in a criminal context. A psychologist could consider using these tests in their assessment, despite their relatively infrequent use in civil matters. Dalby (1997) reported that up to four million Americans a year were given polygraph tests. The basic premise of the polygraph is that when a person lies, they respond physiologically, and these responses can be measured by such indices as heart rate, respiration rate and skin resistance. Even though this basic premise is faulty — it fails to account for the fact that most strong emotions (such as fear, anxiety, guilt, and anger) have physiological correlates, and are often indistinguishable — research into polygraph methodology has indicated that some techniques are more valid and reliable than others. The most appropriate procedures minimise the effect of anxiety-based responses and the extent to which the subject is able to manipulate internal or external cues.

Case Examples: Malingering The courts in civil and criminal cases are very sensitive to the issue of potential malingering. Most insurance companies see it ‘all the time’. Plaintiff lawyers rarely see it. For a psychologist, the detection of deliberate deception for personal gain is a challenge. The following cases illustrate an approach adopted where psychometric tools and a knowledge of the literature played a part in offering an opinion. Despite the best of psychological efforts, the courts may not always agree with the opinions offered.

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Case 6A: WorkCover Fraud This case involved a woman who was charged with WorkCover fraud. Video evidence was weighted very highly in this matter by the court. (This may suggest a need for further research into the ‘Science of Undercover Videotaping’!) Suffice to say the court found her guilty.

Background Medical reports indicated that the defendant had an extensive history of back injury that had required repeated surgery over a three-year period. It was indicated that the defendant also had a history of psychological problems related to anxiety and depression. Following a work accident, the defendant reported an anterior fusion operation, followed by a posterior fusion operation 18 months later, and a stabilisation of the left sacroiliac joint 1 year later. The defendant indicated she had been prescribed a variety of medications for pain reduction (Kapanol, liquid morphine, and Tramal), antidepressant medication (Zoloft), antiinflammatory medication (Naprosyn) medication to assist sleeping (Stillnox), and anti-anxiety medication (Valium). In addition, the defendant was referred to a psychologist, for treatment of symptoms associated with depression, anxiety and panic attacks and pain management.

Assessment Two contemporary standardised psychological tests were used in order to examine aspects of the defendant’s personality and her clinical features. This included the NEO Personality Inventory — Revised, and the Personality Assessment Inventory. The PAI incorporated various validity scales that indicate whether an individual is consistent in responding; whether the person is paying attention to questions; and whether the person is tending to exaggerate their symptoms either positively or negatively. In addition the Personality Assessment Inventory provides a specific malingering measure (MAL) based on extensive empirical testing with clinical and malingering samples. From a personality perspective, the psychological tests (in particular, the NEO PI-R) indicated that the defendant was a person with very high ‘neuroticism’ traits who was inclined to deal poorly with stress and was generally emotionally unstable. She had heightened levels of ‘vulnerability to stress’, ‘impulsivity’ and ‘depression’ traits. Although she was generally an introverted person, the defendant’s responses indicated that she was assertive, open about her feelings and her values, altruistic, straightforward and trusting in others. She was also a person who tended not to be overly compliant and this was reflected by an elevated orientation to being stubborn, intolerant and headstrong in her behaviour. The defendant’s responses indicated that she was a person who saw herself as being relatively competent, well organised, dutiful and orientated towards achievement. 125


The Personality Assessment Inventory validity scales indicated that the defendant’s responses were generally consistent, that she did not have any problems answering questions logically, nor did she show either an overly positive or overly negative response bias or a tendency to exaggerate her symptoms. The specific malingering index (MAL) indicated that she was in the ‘non-malingering’ range. The defendant’s general clinical profile was elevated on measures of somatisation, depression, social detachment, thought disorder, affective instability, irritability, negative relationships, affective anxiety, and physiological anxiety. On the treatment scales, the defendant was elevated on measures of attitude to aggression, verbal aggression and stress. The interpersonal scales indicated that the defendant was a person who was generally dominant and relatively cold.

Malingering Definition According to the DSM-IV (page 683) malingering is: ‘the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as avoiding military duty, avoiding work, obtaining financial compensation, evading criminal prosecution, or obtaining drugs’. The DSM-IV states that malingering may be suspected if: 1. [it was a] medical legal matter 2. [there is a] marked discrepancy between claimed stress or disability in the objective findings 3. [there is a] lack of cooperation during assessment 4. [there are] antisocial personality disorder traits evident.

Psychiatratrist for the Insurance Company A psychiatrist provided a report that argued the defendant was a malingerer. The psychiatrist did not assess or have contact with the defendant, instead relied exclusively on video evidence and medical reports in forming his opinion. The psychiatrist dismissed the possibility that time and/or treatment were likely factors associated with the discrepancy, nor that her psychological condition was a relevant factor. The psychiatrist concluded: ‘I note typical symptom fluctuations which are consistent and can be understood in the context of external incentives. I know various practitioners have had difficulty understanding the defendant’s responses to treatment and to a lack of response to treatment. I also note a typical presentation in the presence of noxious environmental conditions. I note a number of practitioners have indicated the defendant’s complaints are in excess of clinical findings. Considering the possibilities within my specialty, malingering would appear to best fit the information that has been provided to me and to explain the defendant’s inconsistent presentation. I do not think I can comment upon what duties the defendant was fit to perform during the year because I did not conduct a psychiatric examination of her.’ 126


The psychiatrist concluded that because video evidence showed the defendant as being actively involved in gardening, and this according to medical opinion, was beyond her abilities, she was therefore malingering. It was assumed implicitly that the incentive for the defendant’s behaviour was financial, and that factors such as her level of medication and personality characteristics were not relevant to the determination. Despite the psychiatrist’s opinion there was little hard evidence to support it. 1. There was no evidence that the defendant was motivated by financial benefit to influence her behaviour. 2. The video evidence showed the he defendant engaging in gardening activity. Such behaviour was by ‘normal standards’ not bizarre or unusual. 3. There was no discussion of the potential effects that powerful painkillers may have upon behaviour or the combined effects of medication and a stubborn personality. 4. Psychometric tests did not provide any evidence of exaggeration or malingering in the defendant’s responding. 5. There was no history of antisocial behaviour or any suggestion of an antisocial personality disorder. 6. The defendant’s GP, who had seen the defendant on a regular basis over an 8-year period did not consider she was inconsistent or malingering, but rather she had ‘good and bad days’. 7. The defendant did not show any aversion to participating in all aspects of the assessment, despite it being long, tedious and boring. Further the testing process was likely to cause some level of physical discomfort. Typically malingering patients are reluctant to undergo assessment and tend to make regular complaints about having to participate. 8. The defendant’s personality profile reflected a heightened level of stubbornness, outspokenness and headstrong behaviour. Such characteristics were totally consistent with her behaviour under surveillance. 9. Inferences based solely on visual observation information can lack reliability as they are vulnerable to manipulation and the context of the behaviour is unknown.

Video Surveillance The video film shows the defendant performing ‘normal gardening duties’. There did not appear to be any additional information as to what medication the defendant was on at the time, how this may affect her behaviour, and what her current mental state was at the time when the video was taken. According to the defendant’s self report, at the time she was angry because of the surveillance and had taken significant painkiller medication in order to ‘show those filming what she could do’. Such a reaction was consistent with the defendant’s general personality that reflected a level of stubbornness and headstrong behaviour. 127


Ironically, were the defendant a person attempting to exaggerate her symptoms assuming that she did not have a medical condition, extreme dysfunctional behaviour would be expected. That is, were the defendant malingering, it might logically be expected that she would attempt to exaggerate her negative symptoms in order to gain financial benefit, rather than actively engage in positive work activity. This was not the case. In conclusion, the defendant’s condition was not consistent with that of a malingerer, but rather consistent with that of an individual who often dealt poorly with life problems, who was belligerent and stubborn and who tended to focus on her physical ailments.

Magistrate’s Judgment The defendant was charged with 53 offences against s.120 (1) of the Workers Rehabilitation and Compensation Act 1986 (‘The Act’) — counts 1–5 and 11 were dismissed — the other charges were found proved by the magistrate. In her evidence, the defendant offered an explanation for her behaviour as depicted in the video film. She said that, on that day, she became aware that she was under surveillance. She was angry. After dosing herself up with morphine she went outside and ‘put on a show’ for the surveillance operators with the object of embarrassing them. In his evidence, her husband, corroborated that version of events. In his psychological report, Dr A stated that such a reaction on the part of the defendant was consistent with her general personality that ‘reflected a level of stubbornness and headstrong behaviour’. The magistrate rejected the explanation given by the defendant and her husband for the manner in which she acted during the filming of the videos. He concluded that she was unaware of being filmed and that there was no medical or psychiatric explanation for the inconsistencies in the defendant’s portrayal of her condition and her actions at the times of filming. In assessing the evidence of Dr A, the magistrate referred to the evidence of a number of the prosecution medical experts who expressed the opinion that there was no medical explanation for the difference between the defendant’s presentation to them and her movements as depicted in the film. The magistrate also referred to the evidence of the psychiatrist who had reached the conclusion that the defendant was ‘a malingerer’. The magistrate accepted his view over Dr A’s. The magistrate expressed the view that the defendant had supplied Dr A with information which, on the magistrate’s findings, was untrue, namely the claim that she knew she was being filmed. He commented that the actions of the defendant had undermined the reliability of the opinions on which she sought to rely.

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Case 6B: Criminal Malingering This case involved a prisoner who was detained at a mental health institution prior to sentencing, having been found guilty of armed robbery (x 2). A report was requested by the court as to his mental health.

Background The defendant was a 39-year-old Caucasian male who had a 20-year history of heroin abuse. He indicated that his habit was costing him around $200 a day. The defendant indicated that the offences he was being sentenced for were in fact committed by ‘a friend’ who had been supplying him with heroin. He said he had kept his mouth shut and was ‘doing time for him’. The defendant said that he felt ‘very angry’ his friend was not helping him. The defendant claimed the police had fabricated evidence to have him convicted. The defendant had been detained to a mental health institution for assessment prior to his sentencing. It was suggested that he may be suffering from a severe impairment that could affect his capacity to understand his situation. The defendant had been in a 20-year relationship from which he had a 16-year-old son. He reported having two other children aged 6 and 2 from separate relationships when he was ‘working interstate’. The defendant indicated his education was limited to Year 8 level and that he had left school when he was aged 15. He reported that he had worked as a labourer until he was injured in a work-related accident.

Assessment The defendant was assessed over a 3-week period with a host of psychological tests that included: Cognitive Tests • Kaufmann Brief Intelligence Test (K-BIT; Kaufmann & Kaufmann, 1990) • Wechsler Adult Intelligence Scale — Revised (WAIS-R: Wechsler, 1981) • National Adult Reading Test (NART: Nelson, 1982) • Complex Figure Test (CFT; Osterrieth, 1944) • 15 Item Test (also known as the RAVLT; Schmidt, 1996) • Wechsler Memory Scale – Revised (WMS-R; Wechsler, 1987) • FAS Word Fluency Test (also known as the COWAT; Benton & Hamsher, 1976) Self-Report Tests • NEO Personality Inventory — Revised (NEO PI-R; Costa & McCrae, 1992) • Personality Assessment Inventory (PAI; Morey, 1991). In relation to the cognitive testing the defendant was difficult to assess. He often gave incorrect answers that were bizarre and took several 129


sessions of testing to complete the tests, requiring significantly more time than ‘normal’. His performance was inconsistent within various cognitive tests such that his performance abilities varied significantly. Errors made were of the same qualitative type as the correct responses but consistent with some deliberate distortion (e.g., ‘What is the capital of Italy?’ Answer: ‘Greece’; ‘What is the meaning of the word winter?’ Answer: ‘Cyclones and water’). When asked to copy a complex shape the defendant drew ‘a face’. With the memory tests the defendant’s performance was very inconsistent. His immediate (digit span) was determined on initial testing to be in the order of 3 digits. Such a level was inconsistent with him being able to comprehend complex daily speech. Several days later his immediate memory was within the normal range. With the 15 Item test, the defendant’s performance was extremely poor and consistent with a person intentionally performing poorly in order to feign a mental illness. In relation to the defendant’s personality profile it was indicated that he was very high on the neuroticism factor score, high on the extraversionfactor score, within the average range for the openness factor score, low on the agreeableness factor score and within the low range for the conscientiousness factor score. His personality profile indicated he was generally emotionally unstable and inclined to deal poorly with stress. He was especially elevated on measures of impulsiveness, self-consciousness, and was attracted to excitement-seeking activities. The defendant was a person who saw himself as being non-compliant and not straightforward. He was a person who generally lacked order and deliberation. The defendant’s clinical profile reflected significant elevation on several validity scales, namely the infrequency scale and negative impression of self scale. The infrequency scale incorporated items that had very low frequency endorsement, and as such, either the person did not understand the questions, or deliberately distorted their responses. For example, the item ‘My favourite poet is Raymond Kertez’, to which the response Very true was provided. Similarly, ‘Most people look forward to a trip to the dentist’ for which the response Very true was provided. In relation to negative impression of self scale it was indicated that the defendant attempted to portray himself extremely negatively. Items for this scale included bizarre and unlikely symptoms that were not related to known clinical conditions. The defendant strongly endorsed such items (e.g., ‘sometimes my vision is only in black and white’; ‘I don’t have any good memories from my childhood’; ‘I have severe psychological problems that began very suddenly’). On the clinical scales, the defendant had significant elevations on subscales of grandiosity and egocentricity.

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Conclusion It was concluded that the defendant presented with a range of unusual and bizarre ‘sick’ symptoms. Such symptoms were generally of a neurological type (related to cognitions and memory problems) but were inconsistent with a diagnosis of an organic disorder. The defendant’s attitude to testing was particularly uncooperative, and there appeared a level of control in the way responses were offered. The behaviour symptoms of the defendant were inconsistent and bizarre. Symptoms varied from day to day and his capacity to undertake even the simplest of daily living tasks was unrealistically poor; for example, cleaning teeth, dressing, and so forth. The defendant’s ability to engage in meaningful conversation varied depending upon the person with whom he was engaged. With friends and family he was bright and reactive. Among clinical staff he was inconsistently blunted, incoherent or mute. The defendant’s neuropsychological results were atypical of a person with an organic disorder. Even robust measures varied considerably from one day to the next. The self-report measures indicated the defendant was inclined to exaggerate himself in a negative light and endorse infrequent responses. His personality traits reflected a level of heightened emotional instability, non-compliance and distortion in communication. It was concluded that the dysfunctional symptoms of the defendant were motivated more by a conscious strategy to appear unwell in order to assist his legal outcome. The conclusion was made that this was consistent with a diagnosis of malingering.

The Sentence The defendant was given an 18-year sentence with a 12-year non-parole period. The sentencing Judge expressed concern about his deception during the assessment. The defendant later sent a Christmas card to the author of the report with a message ‘Thinking of you all ways!’

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chapter

8

Going to Court as an Expert Witness Prior to Court The Report

T

here should always be a report prepared for the legal matter to which you have been invited to present expert testimony. Before attending court, you should always check your report thoroughly, including checking: • accuracy (dates, test data, names) • logic (are opinions logically developed and supported by the data?) • common sense (would an ‘average’ person, the jury, and the judge, all understand your explanations? Consider the lowest common denominator) • psychological terms — ensure that you have a provided a relevant definition (again, remember the lowest common denominator). Is the report jargon free? Explain how the tests work and provide relevant details about them, such as how they were developed, how commonly they are used, any evidence supporting their application • contrary arguments — examine and really test the strength of your opinion. Imagine you were asked to give an opposite opinion — could you justify it?

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• hypotheticals, for example, what if the person was lying? Prepare and practise your response to such hypotheticals as if they were presented to you by counsel.

Meeting With Counsel Contact the solicitor to arrange a meeting with you and the barrister. Make an appointment with him or her prior to the court date to go through your evidence with them. Do not expect that simply meeting for an hour or so prior to your appearance will be sufficient time to prepare. At that meeting: • ask the barrister what they are going to ask you • prepare a script that flows logically • outline what you think are the strengths and weaknesses of the case. Don’t be foolish or naïve, you only get called to court if the two opposing sides disagree with your evidence and you are their target. It can help if you familiarise yourself with the setting. Consider going to the court room when it is empty or watching other experts give evidence. Get used to the environment, it is always going to be anxiety provoking but the anxiety you experience can be minimised if you have prior exposure to the setting. Go through the same process as a good actor would to prepare for a stage play, that is, diaphragmatic breathing or other relaxation techniques. Discuss with the barrister what questions you might be expected to be asked and what issues are likely to arise during cross-examination. This procedure is often referred to as ‘proofing the witness’. This should activity should not be overlooked. Remember, as an expert you are an independent friend of the court. You are not owned by either side, even though only one side is paying your fee!

Qualifying as an Expert Witness In order to qualify as an expert witness for the court your report must include: • name and qualifications (dates and university) • current position • membership of professional organisations • area of expertise/field of practice • relevant publications written • number of cases assessed • previous experience in court as a witness. You should be able to verbally summarise this personal information if questioned. 134

GOING TO COURT AS AN EXPERT WITNESS

In the Court It is important to enter the court room well prepared. Be familiar with your report and prepared to answer any questions about it. Present yourself professionally at all times.

Materials to Take to Court • • • • • •

a concise curriculum vitae (multiple copies) the report on which you will be examined test data and notes copy of the DSM-IV relevant research article(s)/texts definition of your field of expertise (e.g., what is forensic psychology?).

Do not take material that you don’t need or that you don’t understand (e.g., a drug dosage manual).

What to Wear Your attire should be neat, formal and conservative. It is important that you dress in a way that shows the court that you respect their authority. Dressing casually is likely to undermine your credibility in the eyes of the court.

In the Witness Box Check that there is some water and a glass — have a mouthful to settle in. The first part of giving evidence is the swearing-in process, and then the barrister will ask you questions. Begin by responding to the questioning barrister and move to address the judge and the jury. This is known as the fan effect, whereby you move your head in a fanning movement so as to direct your communication at all courtroom personnel. Remember the judge and the jury are the people who count. Try to be as natural and relaxed as you can be.

Examination-in-Chief This is the main part of your evidence. The barrister will ask you a series of questions which asks you to explain how you arrived at your opinion. Build up your confidence with known questions. You can ask the court if you may refer to your notes. Again, make sure you do a dress rehearsal of the examination-in-chief beforehand, preferably with the barrister. Cross-Examination The aim of this examination (by the opposing side) is to either discredit your evidence, or discredit you, or both. Think of it as a game and try not

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to feel personally attacked. A good cross-examination will test your concentration and emotions. Be prepared. The rules of the cross-examination game are: • think on your feet • don’t get upset, no matter how offensive things may seem at the time • keep to your argument, but move if the criteria change (as an expert witness it is important to remain impartial — remember you are working for the court, not for the client) • Aim to appear credible, helpful, warm, intelligent, articulate and relevant.

A Guide to Answering Cross-Examination Questions • Listen to each question. • Don’t answer ‘Yes’ or ‘No’ if you feel it is a set-up. Explain your answer conditionally. • The role of the pause is extremely important. • If you are asked a question you don’t understand or hear ask, ‘Could you repeat the question please?’ • If you don’t have a clue say, ‘I don’t know the answer to that question’ (in a nice way). • If you are asked a question outside your area of expertise say, ‘I am not an expert in that field’.

When the Trial is Over Get feedback from the barrister about your performance. Read the judge’s summing up remarks — they will either say if you were a waste of space or they might even say you had something useful to contribute. They might also just ignore you. After the trial go and relax — you will have deserved it. For many people the experience is frightening, but if you prepare thoroughly it will be a little less frightening. After a few trials you might even begin to enjoy it! But don’t get over-confident — there are a lot of very good barristers who enjoy testing the weaknesses of a psychologist.

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appendix

1

Offender Rehabilitation Programs in Australia Sex Offender Programs Jurisdiction

Program title

Duration

VIC

Sex Offender Program (MMIP)

144–288+ hours

CUBIT — Adapted*^

720 hours

NSW

CUBIT — Moderate Intensity*^

480 hours

CUBIT — High Intensity*^

600 hours

CORE*

120 hours

ACT

Sex Offender Treatment Program

260 hours

QLD

Community Sex Offender Program

44 hours

Sex Offender Intervention Program

60 hours


216 hours

Indigenous Sex Offender Program

216 hours

TAS


216 hours

WA

Community-Based Program

75 hours

Community Based Sex Offender Treatment Program

75 hours

Medium Sex Offender Program

192 hours

Medium Sex Offender Program (Indigenous)

192 hours

Sex Offender Intensive Program

450 hours

Specific target

Indigenous

Intellectually disabled

Indigenous

*Sections of manual available for review ^Therapeutic Community

137


Violent Offender Programs Jurisdiction Program title

Duration

NSW

Violent Offender Therapeutic Program*^ 831.5 hours

QLD

Violence Intervention Program

134 hours

Violent Offender Treatment Program

450 hours

Violent Offender Treatment Program+

64 hours

WA

Specific target

*Sections of manual available for review ^ Therapeutic Community + manual not available

Cognitive Skills Programs Jurisdiction

Program title

Duration

SA

Think First — Community*

44 hours

Think First — Prison*

60 hours

Think First — Community

51 hours

Think First — Prison

60 hours

Think First — Community

44 hours

VIC

NSW

Specific target

Think First — Prison

60 hours

ACT

Thinking for Change

44 hours

QLD

Cognitive Skills

32 hours

NT

Cognitive Skills

24 Hours

TAS

Offending Is Not The Only Choice

46 hours

WA

Reasoning and Rehabilitation

76 hours

Legal and Social Awareness

66 hours

Intellectually disabled

Specific target

* Pilot

Anger Management Programs Jurisdiction

Program title

Duration

SA

Anger Management

20 hours

VIC

Simple no-nonsense anger management program (SNAP)

12 hours

Managing Emotions

48 hours

NSW

Anger Management

20 hours

QLD

Anger Management

20 hours (continued over)

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APPENDIX 1: OFFENDER REHABILITATION PROGRAMS IN AUSTRALIA

Anger Management Programs (cont.) Jurisdiction

Program title

Duration

NT

Anger Management

20 hours

WA

Women's Anger Management

40 hours

Managing Anger and Substance Use

50 hours

Indigenous Managing Anger and Substance Use Offenders

50 hours

CALM*

48 hours

Specific target

Female

Indigenous

* Manual not available

Drug and Alcohol Programs Jurisdiction

Program title

Duration

SA

Alcohol and Other Drugs (Part A and B)

12 hours

Ending Offending

12 hours

Alcohol and Driving Education

12 hours

VIC

NSW

ACT

Specific target

Indigenous

Benzodiazepine Education Program

12 hours

Cannabis Education Program

12 hours

CLD Drug Education Program

12 hours

Indochinese

Prison-Based Drug and Alcohol Program — Intensive available

130+ hours

Women's adaptation available

Alchemy: Alcohol Education and Reduction

20 hours

Understanding Substance Abuse and Dependence

40 hours

13-Week Intensive Drug Treatment Program*

125 hours

Alcohol and Other Drugs*

12 hours

Alcohol and Other Drugs: Education

12 hours

Alcohol and Other Drugs: Relapse Prevention

12 hours

Drug Awareness Program

12 hours

Coping Skills Program

30 hours

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Drug and Alcohol Programs (cont.) Jurisdiction

Program title

Duration

Specific target

QLD

Ending Offending

12 hours

Indigenous

Substance Abuse Managing and Preventing Relapse

20 hours

Illicit Drug Treatment Program

16 hours

NT

Cannabis Treatment Program

16 hours

Alcohol Treatment Program

20 hours

TAS

Substance Use is Not the Only Choice

46 hours

WA

Women's Substance Use Program

20 hours

Moving on From Dependencies (Men)

100 hours

Moving on From Dependencies (Women) Female Offenders

100 hours

Pathways *

99.5 hours

Choices*

43 hours

Substance Abuse Relapse Prevention*

25 hours

Female

* manual not available

Victim Awareness Programs Jurisdiction

Program title

Duration

SA

Victim Awareness

10 hours

NT

Victim Awareness

10 hours

Specific target

Domestic Violence Programs Jurisdiction

Program title

Duration

SA

Domestic Violence

24 hours

VIC

Me and My Family

20 hours

Managing Our Relationships

28 hours

ACT

Power and Control: Tactics for men who batter

48 hours

QLD

Domestic Violence*

48 hours

Ending Family Violence

20 hours

Indigenous

NT

Indigenous Family

54 hours

Indigenous

WA

Building Better Relationships

72 hours

*manual not available

140

Specific target

appendix

2

Family Court Guidelines for Expert Evidence† PART 15.5 EXPERT EVIDENCE Division 15.5.1 General RULE 15.41 APPLICATION OF PART 15.5 15.41 This Part does not apply to evidence from a medical practitioner or other person who has provided, or is providing, treatment for a party or child if the evidence relates only to: (a) the results of an examination, investigation or observation made; (b) a description of any treatment carried out or recommended; or (c) expressions of opinion limited to the reasons for carrying out or recommending treatment and the consequences of the treatment.

Example for rule 15.41 An example of a person excluded from the requirements of this Part is a treating doctor or a teacher who is asked to give evidence because of the doctor’s or teacher’s involvement with a party or child. †

All legislative material herein is reproduced by permission but do not purport to be the official or authorised versions. It is subject to Commonwealth of Australia copyright.

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RULE 15.42 PURPOSE OF PART 15.5 15.42 The purpose of this Part is: (a) to ensure that parties obtain expert evidence only in relation to a significant issue in dispute; (b) to restrict expert evidence to that which is necessary to resolve or determine a case; (c) to ensure that, if practicable and without compromising the interests of justice, expert evidence is given on an issue by a single expert witness; (d) to avoid unnecessary costs arising from the appointment of more than one expert witness; and (e) to enable a party to apply for permission to tender a report or adduce evidence from an expert witness appointed by that party, if necessary in the interests of justice. RULE 15.43 DEFINITIONS 15.43 In this Part: expert means an independent person who has relevant specialized knowledge, based on the person’s training, study or experience, but does not include: (a) a mediator employed by a Family Court (including a person appointed under regulation 8 of the Regulations); or (b) an expert who has been appointed by a party for a purpose other than the giving of advice or evidence, or the preparation of a report for a case or anticipated case. expert’s report means a report by an expert witness, including a notice under subrule 15.59(5) . expert witness means an expert who has been instructed to give or prepare independent evidence for the purpose of a case. single expert witness means an expert witness who is appointed by agreement between the parties or by the court to give evidence or prepare a report on an issue.

Division 15.5.2 Single Expert Witness RULE 15.44 APPOINTMENT OF SINGLE EXPERT WITNESS BY PARTIES 15.44 (1) If the parties agree that expert evidence may help to resolve a substantial issue in a case, they may agree to jointly appoint a single expert witness to prepare a report in relation to the issue. 15.44 (2) A party does not need the court’s permission to tender a report or adduce evidence from a single expert witness appointed under subrule (1).

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APPENDIX 2: FAMILY COURT GUIDELINES FOR EXPERT EVIDENCE

RULE 15.45 ORDER FOR SINGLE EXPERT WITNESS 15.45 (1) The court may, on application or on its own initiative, order that expert evidence be given by a single expert witness. 15.45 (2) When considering whether to make an order under subrule (1), the court may take into account factors relevant to making the order, including: (a) the main purpose of these Rules (see rule 1.04 ) and the purpose of this Part (see rule 15.42 ); (b) whether expert evidence on a particular issue is necessary; (c) the nature of the issue in dispute; (d) whether the issue falls within a substantially established area of knowledge; and (e) whether it is necessary for the court to have a range of opinion. 15.45 (3) The court may appoint a person as a single expert witness only if the person consents to the appointment. 15.45 (4) A party does not need the court’s permission to tender a report or adduce evidence from a single expert witness appointed under subrule (1). RULE 15.46 ORDERS THE COURT MAY MAKE 15.46 The court may, in relation to the appointment of, instruction of, or conduct of a case involving, a single expert witness make an order, including an order: (a) requiring the parties to confer for the purpose of agreeing on the person to be appointed as a single expert witness; (b) that, if the parties cannot agree on who should be the single expert witness, the parties give the court a list stating: (i) the names of people who are experts on the relevant issue and have consented to being appointed as an expert witness; and (ii) the fee each expert will accept for preparing a report and attending court to give evidence; (c) appointing a single expert witness from the list prepared by the parties or in some other way; (d) determining any issue in dispute between the parties to ensure that clear instructions are given to the expert; (e) that the parties: (i) confer for the purpose of preparing an agreed letter of instructions to the expert; and (ii) submit a draft letter of instructions for settling by the court;

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(f) settling the instructions to be given to the expert; (g) authorising and giving instructions about any inspection, test or experiment to be carried out for the purposes of the report; or (h) that a report not be released to a person or that access to the report be restricted. RULE 15.47 SINGLE EXPERT WITNESS’S FEES AND EXPENSES 15.47 (1) The parties are equally liable to pay a single expert witness’s reasonable fees and expenses incurred in preparing a report. 15.47 (2) A single expert witness is not required to undertake any work in relation to his or her appointment until the fees and expenses are paid or secured. Note 1. This rule applies unless the court orders otherwise (see rule 1.12 ). Note 2. If there is a dispute about fees, a party or the expert witness may request the court to determine the dispute (see paragraph 15.46 (d)).

RULE 15.48 SINGLE EXPERT WITNESS’S REPORT 15.48 (1) A single expert witness must prepare a written report. 15.48 (2) If the single expert witness was appointed by the parties, the expert witness must give each party a copy of the report at the same time. 15.48 (3) If the single expert witness was appointed by the court, the expert witness must give the report to the Registry Manager. Note 1. An expert witness may seek procedural orders from the court under rule 15.60 if the expert witness considers that it would not be in the best interests of a child or a party to give a copy of a report to each party.

15.48 (4) An applicant who has been given a copy of a report must file the copy but does not need to serve it. RULE 15.49 APPOINTING ANOTHER EXPERT WITNESS 15.49 (1) If a single expert witness has been appointed to prepare a report or give evidence in relation to an issue, a party must not tender a report or adduce evidence from another expert witness on the same issue without the court’s permission. 15.49 (2) The court may allow a party to adduce evidence from another expert witness on the same issue if it is satisfied that: (a) there is a substantial body of opinion contrary to any opinion given by the single expert witness and that the contrary opinion is or may be necessary for determining the issue; (b) another expert witness knows of matters, not known to the single expert witness, that may be necessary for determining the issue; or (c) there is another special reason for adducing evidence from another expert witness. 144


RULE 15.50 CROSS-EXAMINATION OF SINGLE EXPERT WITNESS 15.50 (1) A party wanting to cross-examine a single expert witness at a hearing or trial must inform the expert witness, in writing at least 14 days before the date fixed for the hearing or trial, that the expert witness is required to attend. 15.50 (2) The court may limit the nature and length of cross-examination of a single expert witness.

Division 15.5.3 Permission for Expert’s Evidence RULE 15.51 PERMISSION FOR EXPERT’S REPORTS AND EVIDENCE 15.51 (1) A party must apply for the court’s permission to tender a report or adduce evidence at a hearing or trial from an expert witness, except a single expert witness. 15.51 (2) A child representative may tender a report or adduce evidence at a hearing or trial from one expert witness on an issue without the court’s permission. RULE 15.52 APPLICATION FOR PERMISSION FOR EXPERT WITNESS 15.52 (1) A party may seek permission to tender a report or adduce evidence from an expert witness by filing an Application in a Case (Form 2 ). Note 1. A party who files a Form 2 must, at the same time, file an affidavit stating the facts relied on in support of the orders sought (see subrule 5.02(1) ). Note 2. The court may allow a party to make an oral application (see paragraph (h) in item 3 of Table 11.1 in rule 11.01 ).

15.52 (2) The affidavit filed with the application must state: (a) whether the party has attempted to agree on the appointment of a single expert witness with the other party and, if not, why not; (b) the name of the expert witness; (c) the issue about which the expert witness’s evidence is to be given; (d) the reason the expert evidence is necessary in relation to that issue; (e) the field in which the expert witness is expert; (f) the expert witness’s training, study or experience that qualifies the expert witness as having specialized knowledge on the issue; and (g) whether there is any previous connection between the expert witness and the party.

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15.52 (3) When considering whether to permit a party to tender a report or adduce evidence from an expert witness, the court may take into account: (a) the purpose of this Part see rule 15.42 ); (b) the impact of the appointment of an expert witness on the costs of the case; (c) the likelihood of the appointment expediting or delaying the case; (d) the complexity of the issues in the case; (e) whether the evidence should be given by a single expert witness rather than an expert witness appointed by one party only; and (f) whether the expert witness has specialized knowledge, based on the person’s training, study or experience: (i)

relevant to the issue on which evidence is to be given; and (ii) appropriate to the value, complexity and importance of the case. 15.52 (4) If the court grants a party permission to tender a report or adduce evidence from an expert witness, the permission is limited to the expert witness named, and the field of expertise stated, in the order. Note. Despite an order under this rule, a party is not entitle [Gov error] to adduce evidence from an expert witness if the expert’s report has not been disclosed or a copy has not been given to the other party (see rule 15.58 ).

Division 15.5.4 Instructions and Disclosure of Expert’s Report RULE 15.53 APPLICATION OF DIVISION 15.5.4 15.53 This Division does not apply to a market appraisal or an opinion as to value in relation to property obtained by a party for the purposes of a procedural hearing or conference under paragraph 12.02 (g) or subrule 12.05(2) . RULE 15.54 INSTRUCTIONS TO EXPERT WITNESS 5.54 (1) A party who instructs an expert witness to give an opinion for a case or an anticipated case must: (a) ensure the expert witness has a copy of the most recent version of, and has read, this Part of these Rules; and (b) obtain a written report from the expert witness.

146


15.54 (2) All instructions to an expert witness must be in writing and must include: (a) a request for a written report; (b) advice that the report may be used in an anticipated or actual case; (c) the issues about which the opinion is sought; (d) a description of any matter to be investigated, or any experiment to be undertaken or issue to be reported on; and (e) full and frank disclosure of information and documents that will help the expert witness to perform the expert witness’s function. RULE 15.55 MANDATORY DISCLOSURE OF EXPERT’S REPORT 15.55 (1) A party who has obtained an expert’s report for a parenting case, whether before or after the start of the case, must give each other party a copy of the report: (a) if the report is obtained before the case starts — at least 2 days before the case assessment conference; or (b) if the report is obtained after the case starts — within 7 days after the party receives the report. 15.55 (2) The party who discloses an expert’s report must disclose any supplementary report and any notice amending the report under subrule 15.59(5) . 15.55 (3) If an expert’s report has been disclosed under this rule, any party may seek to tender the report as evidence. 15.55 (4) Legal professional privilege does not apply in relation to an expert’s report that must be disclosed under this rule. RULE 15.56 PROVISION OF INFORMATION ABOUT FEES 15.56 A party who has instructed an expert witness must, if requested by another party, give each other party details of any fee or benefit received, or receivable, by or for the expert witness, for the preparation of the report and for services provided, or to be provided, by or for the expert witness in connection with the expert witness giving evidence for the party in the case. RULE 15.57 APPLICATION FOR PROVISION OF INFORMATION 15.57 (1)This rule applies if the court is satisfied that: (a) a party (the disclosing party ) has access to information or a document that is not reasonably available to the other party (the requesting party ); and (b) the provision of the information or a copy of the document is necessary to allow an expert witness to carry out the expert witness’s function properly.

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15.57 (2)The requesting party may apply for an order that the disclosing party: (a) file and serve a document specifying the information in enough detail to allow the expert witness to properly assess its value and significance; and (b) give a copy of the document to the expert witness. Note. An expert witness may request the court to make an order under this rule (see rule 15.60 ).

RULE 15.58 FAILURE TO DISCLOSE REPORT 15.58 A party who fails to give a copy of an expert’s report to another party or the child representative (if any) must not use the report or call the expert witness to give evidence at a hearing or trial, unless the other party and child representative consent to the report being used or the expert witness being called, or the court orders otherwise.

Division 15.5.5 Expert Witness’s Duties and Rights RULE 15.59 EXPERT WITNESS’S DUTY TO THE COURT 15.59 (1) An expert witness has a duty to help the court with matters that are within the expert witness’s knowledge and capability. 15.59 (2) The expert witness’s duty to the court prevails over the obligation of the expert witness to the person instructing, or paying the fees and expenses of, the expert witness. 15.59 (3) The expert witness has a duty to: (a) give an objective and unbiased opinion that is also independent and impartial on matters that are within the expert witness’s knowledge and capability; (b) conduct the expert witness’s functions in a timely way; (c) avoid acting on an instruction or request to withhold or avoid agreement when attending a conference of experts; (d) consider all material facts, including those that may detract from the expert witness’s opinion; (e) tell the court: i) if a particular question or issue falls outside the expert witness’s expertise; and ii) if the expert witness believes that the report prepared by the expert witness: A) is based on incomplete research or inaccurate or incomplete information; or B) is incomplete or may be inaccurate, for any reason; and (f) produce a written report that complies with rules 15.62 and 15.63 . 148


15.59 (4) The expert witness’s duty to the court arises when the expert witness: (a) receives instructions under rule 15.54 ; or (b) is informed by a party that the expert witness may be called to give evidence in a case. 15.59 (5) An expert witness who changes an opinion after the preparation of a report must give written notice to that effect: (a) if appointed by a party — to the instructing party; or (b) if appointed by the court — to the Registry Manager and each party. 15.59 (6) A notice under subrule (5) is taken to be part of the expert’s report. RULE 15.60 EXPERT WITNESS’S RIGHT TO SEEK ORDERS 15.60 (1) A single expert witness may, by written request to the court, seek a procedural order to assist in carrying out the expert witness’s function. Note. The written request may be by letter and may, for example: (a) ask for clarification of instructions; (b) relate to the questions mentioned in Division 15.5.6 ; or (c) relate to a dispute about fees.

15.60 (2) The request must: (a) comply with subrule 24.01(1) ; and (b) set out the procedural orders sought and the reason the orders are sought. 15.60 (3) The expert witness must serve a copy of the request on each party and satisfy the court that the copy has been served. 15.60 (4) The court may determine the request in chambers unless: (a) within 7 days of being served with the request, a party makes a written objection to the request being determined in chambers; or (b) the court decides that an oral hearing is necessary. RULE 15.61 EXPERT WITNESS’S EVIDENCE IN CHIEF 15.61 (1) An expert witness’s evidence in chief comprises the expert’s report, any changes to that report in a notice under subrule 15.59(5) and any answers to questions under rule 15.66 . 15.61 (2) An expert witness has the same protection and immunity in relation to the contents of a report disclosed under these Rules or an order as the expert witness could claim if the contents of the report were given by the expert witness orally at a hearing or trial.

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RULE 15.62 FORM OF EXPERT’S REPORT 15.62 (1) An expert’s report must: (a) be addressed to the court and the party instructing the expert witness; (b) have attached to it a summary of the instructions given to the expert witness and a list of any documents relied on in preparing the report; and (c) be verified by an affidavit of the expert witness. 15.62 (2) The affidavit verifying the expert’s report must state the following: ‘I have made all the inquiries I believe are necessary and appropriate and to my knowledge there have not been any relevant matters omitted from this report, except as otherwise specifically stated in this report. I believe that the facts within my knowledge that have been stated in this report are true. The opinions I have expressed in this report are independent and impartial. I have read and understand Part 15.5 of the Family Law Rules 2004 and have used my best endeavours to comply with it. I have complied with the requirements of the following professional codes of conduct or protocol, being [state the name of the code or protocol]. I understand my duty to the court and I have complied with it and will continue to do so.’ RULE 15.63 CONTENTS OF EXPERT’S REPORT 15.63 An expert’s report must: (a) state the reasons for the expert witness’s conclusions; (b) include a statement about the methodology used in the production of the report; and (c) include the following in support of the expert witness’s conclusions: (i) (ii)

the expert witness’s qualifications; the literature or other material used in making the report; (iii) the relevant facts, matters and assumptions on which the opinions in the report are based; (iv) a statement about the facts in the report that are within the expert witness’s knowledge; (v) details about any tests, experiments, examinations or investigations relied on by the expert witness and, if

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they were carried out by another person, details of that person’s qualifications and experience; (vi) if there is a range of opinion on the matters dealt with in the report — a summary of the range of opinion and the basis for the expert witness’s opinion; (vii) a summary of the conclusions reached; (viii) if necessary, a disclosure that: (a) a particular question or issue falls outside the expert witness’s expertise; (b) the report may be incomplete or inaccurate without some qualification and the details of any qualification; or (c) the expert witness’s opinion is not a concluded opinion because further research or data is required or because of any other reason. RULE 15.64 CONSEQUENCES OF NONCOMPLIANCE 15.64 If an expert witness does not comply with these Rules, the court may: (a) order the expert witness to attend court; (b) refuse to allow the expert’s report or any answers to questions to be relied on; (c) allow the report to be relied on but take the non-compliance into account when considering the weight to be given to the expert witness’s evidence; and (d) take the noncompliance into account when making orders for: (i) (ii) (iii) (iv)

an extension or abridgment of a time limit; a stay of the case; interest payable on a sum ordered to be paid; or costs.

Note. For the court’s power to order costs, see subsection 117(2) of the Act.

Division 15.5.6 Questions to Single Expert Witness RULE 15.65 QUESTIONS TO SINGLE EXPERT WITNESS 15.65 (1) A party wanting to ask a single expert witness questions about the expert’s report must do so before the hearing or trial. 15.65 (2) The questions must: (a) be in writing and be put once only, within 21 days after the party receives a copy of the report; (b) be only for the purpose of clarifying the expert’s report; and (c) not be vexatious or oppressive, or require the expert witness to undertake an unreasonable amount of work to answer. 151


15.65 (3) The party must give a copy of any questions to each other party. Note. A party may cross-examine a single expert witness (see rule 15.50 ).

RULE 15.66 SINGLE EXPERT WITNESS’S ANSWERS 15.66 (1) A single expert witness must answer a question received under rule 15.65 within 21 days after receiving it. 15.66 (2) An answer to a question: (a) must be in writing; (b) must specifically refer to the question; and (c) must: (i) (ii)

answer the substance of the question; or object to answering the question.

15.66 (3) If the single expert witness objects to answering a question or is unable to answer a question, the single expert witness must state the reason for the objection or inability in the document containing the answers. 15.66 (4) The single expert witness’s answers: (a) must be: (i) (ii)

attached to the affidavit under subrule 15.62(2); sent by the single expert witness to all parties at the same time; and (iii) filed by the party asking the questions; and (b)

are taken to be part of the expert’s report.

RULE 15.67 SINGLE EXPERT WITNESS’S COSTS FOR ANSWERS 15.67 (1) A single expert witness’s reasonable fees and expenses incurred in answering any questions are to be paid by the party asking the questions. 15.67 (2) Despite subrule 15.66(1), a single expert witness is not required to answer any questions until the fees and expenses for answering them are paid or secured. Note. This rule applies unless the court orders otherwise (see rule 1.12 ).

Division 15.5.7 Evidence from Two or More Expert Witnesses RULE 15.68 APPLICATION OF DIVISION 15.5.7 15.68 This Division applies to a case in which two or more parties intend to tender an expert’s report or adduce evidence from different expert witnesses about the same, or a similar, question. 152


RULE 15.69 CONFERENCE OF EXPERT WITNESSES 15.69 (1) In a case to which this Division applies: (a) the parties must arrange for the expert witnesses to confer at least 14 days before the pretrial conference; and (b) each party must give to the expert witness the party has instructed a copy of the document entitled Experts’ Conferences Guidelines for expert witnesses and those instructing them in cases in the Family Court of Australia, the text of which is set out in Schedule 5. 15.69 (2) The court may, in relation to the conference, make an order, including an order about: (a) which expert witnesses are to attend; (b) where and when the conference is to occur; (c) which issues the expert witnesses must discuss; (d) the questions to be answered by the expert witnesses; or (e) the documents to be given to the expert witnesses, including: (i) Part 15.5 of these Rules; (ii) relevant affidavits; (iii) a joint statement of the assumptions to be relied on by the expert witnesses during the conference, including any competing assumptions; and (iv) all expert’s reports already disclosed by the parties. 15.69 (3) At the conference the expert witnesses must: (a) identify the issues that are agreed and not agreed; 15.69 (3) At the conference, the expert witnesses must: (a) identify the issues that are agreed and not agreed; (b) if practicable, reach agreement on any outstanding issue; (c) identify the reason for disagreement on any issue; (d) identify what action (if any) may be taken to resolve any outstanding issues; and (e) prepare a joint statement specifying the matters mentioned in paragraphs (a) to (d) and deliver a copy of the statement to each party. 15.69 (4)If the expert witnesses reach agreement on an issue, the agreement does not bind the parties unless the parties expressly agree to be bound by it. 15.69 (5) The joint statement may be tendered as evidence of matters agreed on and to identify the issues on which evidence will be called. 153


RULE 15.70 CONDUCT OF TRIAL WITH EXPERT WITNESSES 15.70 At a trial, the court may make an order, including an order that: (a) an expert witness clarify the expert witness's evidence after cross-examination; (b) the expert witness give evidence only after all or certain factual evidence relevant to the question has been led; (c) each party intending to call an expert witness is to close that party's case, subject only to adducing the evidence of the expert witness; (d) each expert witness is to be sworn and available to give evidence in the presence of each other; (e) each expert witness give evidence about the opinion given by another expert witness; or (f) cross-examination, or re-examination, of an expert witness is to be conducted: (i) by completing the cross-examination or re-examination of the expert witness before another expert witness; or (ii) by putting to each expert witness, in turn, each question relevant to one subject or issue at a time, until the crossexamination or re-examination of all witnesses is completed.

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glossary

Glossary of Psychological Tests Tests of Intellectual Functioning Kaufman Brief Intelligence Test, 2nd Ed. (KBIT-2) Author: Publisher: Purpose: For use with: Administration:

Kaufman, A. S., & Kaufman, N. L. Pearson Assessments A brief, individually administered measure of verbal and nonverbal cognitive ability. 4–90 years Approximately 20 minutes

The K-BIT is a measure that can be used for subjects aged between 4 and 90 years, and the usual testing time ranges between 15 and 30 minutes. The test provides a measure of the person’s verbal and nonverbal intelligence and utilises both ‘vocabulary’ and ‘matrices’ measures. The instrument has been well standardised, and an Australian adapted version is available through the distributor.

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Wechsler Adult Intelligence Scales 3rd edition (WAIS-III) Author: Publisher: Purpose: For use with: Administration:

Wechsler, D. Harcourt Assessment Measure an adult’s intellectual ability 16–89 years 60–90 minutes

The WAIS-III is an instrument for clinically assessing intellectual ability in adults. It is individually administered, and contains 14 subtests measuring different facets of intelligence. Scores from these subtests are combined to provide composite intelligence scores that estimate: verbal intelligence, measured by acquired knowledge; verbal reasoning and attention to verbal material (VIQ); performance intelligence, measured by fluid reasoning, spatial processing, attention to detail and visuo-motor integration (PIQ); and overall intellectual functioning (full-scale: FSIQ). The WAIS-III also provides for the calculation of index scores, representing verbal comprehension, perceptual organisation, working memory and processing speed. Wechsler Abbreviated Scale of Intelligence (WASI) Author: Publisher: Purpose: For use with: Administration:

Wechsler, D. Harcourt Assessment Obtain a reliable brief measure of intelligence 6–89 years Four-Subtest Form: 30 minutes Two-Subtest Form: 15 minutes

The Wechsler Abbreviated Scale of Intelligence (WASI) was developed for administration for individuals aged between 6 and 89 and it is estimated that administration time is between 15 and 30 minutes. The test incorporates both a 2 subtest form and a 4 subtest form and yields measures of ‘verbal intelligence’, ‘performance intelligence’ and ‘overall intelligence’. One disadvantage with the WASI is that it incorporates subtests of the parent test the WAIS-III. Should follow-up assessment require the full version of the test the assessed person may be affected by a ‘practice effect’ with later testing.

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GLOSSARY OF PSYCHOLOGICAL TESTS

Test of Nonverbal Intelligence, 3rd Edition (TONI-3) Author: Publisher: Purpose: For use with: Administration:

Brown, L., Sherbenou, R. J., & Johnsen, S. K. Pearson Assessments A language-free assessment of nonverbal intelligence and reasoning abilities. 6–89 years 15–20 minutes

A number of nonverbal tests of intelligence are available for use, however one of the most frequently used, most soundly validated and succinct tests is the TONI-3: Test of Nonverbal Intelligence, 3rd Edition (Brown, Sherbenou & Johnsen, 1997). The TONI-3 is a measure of intelligence, aptitude, abstract reasoning, and problem solving that is completely free of the use of language. It requires no reading, writing, speaking, or listening by the test subject, using novel abstract/figural content, and is largely motor-free, requiring only a gesture to indicate response choices. This format makes the TONI-3 useful for assessing individuals who are known or believed to have disorders of communication or thinking such as aphasia, dyslexia, language disabilities, learning disabilities, speech problems, deafness, developmental disabilities, autism, cerebral palsy, stroke, disease, head injury, or other neurological impairment. It is also well suited for people who do not read or write English well. The TONI3 was normed on over 3000 subjects, and meets the highest psychometric standards for norms, reliability, and validity. It requires less than 15 minutes to administer and score, and can be used for people from age 6 to 89.

Tests of Clinical Symptomology Personality Assessment Inventory (PAI) Author: Publisher: Purpose: For use with: Administration:

Morey, L. C. Psychological Assessment Resources, Inc. 22 nonoverlapping full scales provide a comprehensive assessment of adult psychopathology 18 years + 50–60 minutes to administer; 15–20 minutes to score

The Personality Assessment Inventory was developed in 1991 by Psychological Assessment Resources, under the authorship of Leslie Morey. The PAI provided a standardised adult clinical assessment that included a profile of the respondent’s response bias, diagnostic categorisation, treatment orientation and interpersonal style. The developers of the test were thorough in its construction, and utilised a framework that emphasised both rational 157


and empirical methods of scale development. Relevant normative data were based on a census matched sample of 1,000 subjects, in addition, further samples were used including Black community sample (n = 117), senior ccommunity sample (n = 219), clinical sample (n = 1246), student sample (n = 1051) and public safety personnel sample (n = 13705). Detailed reviews of the test have been provided (refer Edens et al., 2001; Douglas, Hart, & Kropp, 2001; Morey, 1996). One major advantage of an instrument like the PAI is that it generates a range of comparative clinical measures. Thus, it is possible to examine the individual’s comparative anxiety level, depressive level, traumatic stress level, psychotic symptom level, etc. If these measures achieve significance, then it would be appropriate for the psychologist to further examine aspects of this preliminary assessment with more detailed (fine-tuning) instruments. NEO Personality Inventory-Revised (NEO PI-R) Author: Publisher: Purpose:

For use with: Administration:

Costa, P., T., Jr., & McCrae, R. R. Psychological Assessment Resources, Inc. Obtain a detailed assessment of normal personality: emotional, interpersonal, experiential, attitudinal, and motivational styles. Adult and elder adult 35–45 minutes

The NEO-Personality Inventory (Revised) is a test that provides measures of five major factors of personality which incorporate 30 individual facets. The instrument is a self-report measure containing 240 items answered on a 5-point scale. It is self-administered and is appropriate for men and women of all ages. It bases its structure on the 5-factor model of personality that incorporates the following factors: • neuroticism (N) • extroversion (E) • openness (O) • agreeableness (A) and • conscientiousness (C). Costa & McCrae (1992) argue that the NEO-PI-R embodies a conceptual model that distills decades of factual and analytic research on the structure of personality. The scales themselves were developed and refined by a combination of rational and factual analytic methods and have been the subject of intensive research conducted over 20 years of both clinical and normal adult samples. Strong evidence of scale reliability, stability and construct validity is provided in the manual. The NEO-PI-R is 158


a measure of ‘normal’ personality traits that have demonstrated utility in both clinical and research settings, and results have been standardised against large samples of census-matched male and female subjects. It has been established statistically (Costa & McCrae, 1991) that individuals high on the neuroticism factor can be more prone to developing clinical disorders than those low on the factor. As such, the test not only offers a guide to the person’s potential vulnerability to stress, but also provides valuable insight into whether the person was likely to be motivated for treatment, or suited to a particular type of treatment. S tructured Clinical for DSM-IV Personality Disorders (SCID-II) Author: Publisher:

Purpose: For use with: Administration:

First, M. B., Spitzer, R. L, Gibbon, M., & Williams, J. B. W. First, M. B., Spitzer, R. L, Gibbon, M., & Williams, J. B. W. (1997). Structured Clinical Interview for DSM-IV Personality Disorders, (SCIDII).Washington, DC: American Psychiatric Press, Inc. A semi-structured interview for making DSM-IV Axis II (Personality Disorder) diagnoses. Adolescents and adults 30 min–1 hour

16PF® Fifth Edition Author: Publisher: Purpose: For use with: Administration:

Cattell, R. B., Cattell, A. K., & Cattell H. E. P. Pearson Assessments Helps provide clinicians with a measurement of neurosis, anxiety, adjustment, and behavioural problems. 16 years + 35–50 minutes (185 multiple-choice items)

Millon Clinical Multi-Axial Inventory III (MCMI-III) Author: Publisher: Purpose: For use with: Administration:

Millon, T., Millon, C., Davis, R., & Grossman, S. Pearson Assessments Assess DSM-IV®-related personality disorders and clinical syndromes 18 years + 25–30 minutes (175 true/false items)

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State–Trait Anxiety Inventory (STAI) Author: Publisher: Purpose: For use with: Administration:

Spielberger, C. D. Psychological Assessment Resources, Inc. Differentiate between state and trait anxiety Adolescents and adults 10 minutes

Beck Depression Inventory® II (BDI®-II) Author: Publisher: Purpose: For use with: Administration:

Beck, A. T., Steer, R. A., & Brown, G. K. Harcourt Assessment Assess depression in line with the depression criteria of the DSM–IV 13–80 years 5 minutes

Beck Anxiety Inventory® (BAI®) Author: Publisher: Purpose: For use with: Administration:

Beck, A. T. Harcourt Assessment Measure the severity of anxiety in adolescents and adults 17–80 years 5–10 minutes

Depression Anxiety and Stress Scale (DASS) Author: Publisher: Purpose: For use with: Administration:

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Lovibond, S. H., & Lovibond, P. F. The DASS is available in the public domain at web site: www.psy.unsw.edu.au/dass/ Designed to measure the negative emotional states of depression, anxiety and stress 14 years + 5–10 minutes.


Detailed Assessment of Posttraumatic Stress™ (DAPS™) Author: Publisher: Purpose: For use with: Administration:

Briere, J. Psychological Assessment Resources, Inc. Assess trauma exposure and symptoms of posttraumatic stress Adult, elder adult 20–30 minutes; 15–20 minutes to score.

Trauma Symptom Inventory™ (TSI™) Author: Publisher: Purpose: For use with: Administration:

Briere, J. Psychological Assessment Resources, Inc. Evaluate acute and chronic posttraumatic symptomatology Adult, elder adult 20 minutes

Briere’s (1995) Trauma Symptom Inventory is a 100-item instrument that measures acute and chronic traumatic symptomatology, and contains 13 separate scales including three validity scales and 10 clinical scales. The validity scales provide measures of response level, atypical response and inconsistent response. The clinical scales include anxiety and arousal, depression, anger/irritability, intrusive experiences, defence avoidance, disassociation, sexual concerns, dysfunctional sexual behaviour, impaired selfreference and tension reduction behaviour. Using the TSI enables the clinician to identify more specifically the characteristics of the individual’s response pattern to a previous trauma. Posttraumatic Stress Diagnostic Scale (PDS®) Author: Publisher: Purpose:


Foa, E. B. Pearson Assessments Designed to aid in the detection and diagnosis of posttraumatic stress disorder (PTSD) according to DSM-IV diagnostic criteria 18–65 years 10–15 minutes (49 items)

Foa (1995) in her development of the Posttraumatic Stress Diagnostic Scale provided an instrument that could determine whether the person’s reported symptoms were consistent with a DSM-IV diagnosis of posttraumatic stress

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disorder. Such a determination may be critical in supporting a person’s claim for having an impairment. The PDS is divided into four areas that measure: • features associated with the trauma • characteristics of reexperiencing the trauma • avoidance symptoms • arousal symptoms. These components were systematically structured in order to provide a scoring of the person’s level of impairment and functioning, their level of symptom severity, and an overall indication as to whether the person satisfies the diagnosis of a PTSD, and whether or not the condition was acute or chronic. Psychosocial Pain Inventory (PSPI) Author: Publisher: Purpose: For use with: Administration:

Heaton, R. K., Lehman, R. A. W., & Getto, C. J. Psychological Assessment Resources, Inc. Discover what specific psychosocial factors contribute to ongoing nature of the problem Adult 1–2 hours

The PSPI is a 25-item, 8-page structured interview designed to assess the influence of psychosocial factors in chronic pain syndromes. Its items are based on solid research and theoretical evidence suggesting that psychosocial factors contribute significantly to an individual’s reaction and adjustment to chronic pain. Psychosocial factors covered in the PSPI include: (1) pain behavior (e.g., up time, time in bed), (2) social reinforcement, (3) life changes, (4) litigation, (5) financial status, (6) use of alcohol, (7) medication use, (8) coping strategies, (9) social environment, and (10) environmental stress. Clients are also queried in regard to their personal and family histories, past and current medical histories, and reactions and adjustments to the pain and treatments. It evaluates several forms of secondary gain, the effects of pain behavior on interpersonal relationships, stressful life events that may contribute to subjective distress or promote avoidance learning, and past experience from which the client may learn about the chronic invalid role and its personal and social consequences. The PSPI is based on a large sample of chronic-pain patients, and scores form a normal distribution. It provides complementary information with the PAI for assessing clients, and high scores have been found to predict poor response to medical treatment for pain.

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Occupational Stress Inventory-Revised™ (OSI-R™) Author: Publisher: Purpose: For use with: Administration:

Osipow, S. H., & Spokane, A. R. Psychological Assessment Resources, Inc. and Sigma Assessment Systems, Inc. Assess occupational stress Adult, elder adult 30 minutes

The OSI-R is a battery composed of 3 questionnaires, totaling 140 items, which measure occupational stress, psychological strain and coping resources. It yields scores on 14 different scales including role overload, role insufficiency, role ambiguity, role boundary, responsibility, and physical environment, vocational strain, psychological strain, interpersonal strain, physical strain, recreation, self-care, social support, and rational/cognitive coping. Clients indicate on a 5-point rating scale the frequency of a stress-related event. Total administration time for the OSI-R is 30 minutes. The OSI-R was normed on more than 900 adults in 130 different occupations, and can provide information about the work roles that are producing an individual’s stress in order to help them develop coping strategies.

Neuropsychological Tests Wechsler Memory Scales 3rd edition (WMS-III) Author: Publisher: Purpose: For use with: Administration:

Wechsler, D. Harcourt Assessment Assess adult memory abilities comprehensively and reliably 16–89 years 30–35 minutes

One of the most frequently used comprehensive memory batteries is the WMS-III, which should be used where there are early indications of memory difficulty (i.e., during the interview, or at the report of the client or other collateral information sources). The WMS-III is the latest revised edition of the WMS, it consists of 6 primary subtests that measure immediate auditory and visual memory, working memory, intermediate memory, and delayed auditory and visual memory. However, it is lengthy in its administration and scoring.

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Rey Auditory Verbal Learning Test: A Handbook (RAVLT) Author: Publisher: Purpose: For use with: Administration:

Schmidt, M. Psychological Assessment Resources, Inc. Evaluate verbal learning and memory Child, adolescent, adult, elder adult Less than 5 minutes

The Rey Auditory Verbal Learning Test (RAVLT) is brief, well-researched, and commonly used, and provides an assessment of both short-term (immediate) and long-term (delayed) auditory verbal memory, learning of new verbal information, effect of proactive and retroactive interference on learning, storage of information, and recognition memory. The RAVLT takes only 15 minutes to administer, using a simple format where the client is asked to remember a list of 15 words (List A) over 5 trials. After 5 trials the client is presented with a different list of 15 different words (List B, acting as an interference) and asked to recall these, after which they are again asked to recall words from List A. After a 20-minute delay, the client is again asked to freely recall words from List A, and then asked to recognise List A words from a long list of words, some of which come from List A, and some of which are new. Norms for the RAVLT can be found in Lezak (1995), and Spreen and Strauss (1991). Comprehensive Trail Making Test (CTMT) Author: Publisher: Purpose: For use with: Administration:

Reynolds, C. R. Psychological Assessment Resources, Inc. Evaluate brain injury and other forms of central nervous system compromise Child, adolescent, adult, elder adult 5–12 minutes to administer; less than 5 minutes to score

The Trail Making Test requires the individual to accurately draw lines connecting a series of consecutively sequenced circles. The test is in 2 parts, Part A being numbered circles from 1–15, and Part B requiring the client to alternate between numbered and lettered circles, i.e., 1-A-2-B etc. Scoring the test is simply the total time taken to complete Part A, and then Part B. The TMT is considered to be in the public domain, and thus can be reproduced (i.e., photocopied) without requiring permission. The TMT is a measure of abilities associated with attention, visuospatial sequencing and speed of visual search, Trail B in particular assesses an individual’s ability to deal with more than one stimulus at a time and to switch attention, or be cognitively flexible. Low scores suggest difficulty with executive functions. Norms for the TMT can be found in Spreen and Strauss (1991) or Reitan and Wolfson (1993). 164


Rey Complex Figure Test and Recognition Trial (RCFT) Author: Publisher: Purpose: For use with: Administration:

Meyers, J. E., & Meyers, K. R. Psychological Assessment Resources, Inc. Measure visuospatial ability and visuospatial memory Child, adolescent, adult, elder adult Approximately 45 minutes, including a 30-minute delay interval (timed).

The RCFT is an assessment of visuospatial organisation, visuospatial constructional ability and visual memory. It involves two trials, firstly copying a complex novel figure, and then, after a 20-minute delay, drawing the figure from recall, although there has been some variation over the years in the administration procedure (see Lezak, 1995, for a discussion). The copy trial is a measure of visuospatial constructional ability, while the free recall task evaluates the individual’s ability to encode complex visual information into longer-term storage and then recall this information at a later time. The RCFT uses a 36-point scoring system, with each of the 18 scoring units (covering different sections of the complex figure) based on accuracy and placement criteria. Unit scores range from two (accurately drawn, correctly placed) to zero (inaccurately drawn, incorrectly placed, unrecognisable, omitted). The RCFT generally takes about 10-15 minutes to administer, and normative and interpretive information is provided in the manual. Controlled Oral Word Association Test (COWAT) Author: Publisher: Purpose: For use with: Administration:

Benton, A. L., & Hamsher, K. Benton, A. L., & Hamsher, K. (1976). Multilingual aphasia examination. Iowa City: University of Iowa Neuropsychological measure of verbal fluency Child, adolescent, adult, elder adult Less than 5 minutes

The COWAT (also know as the FAS verbal fluency test) is designed to assess an individuals verbal fluency, which is their ability to freely generate words. Verbal fluency is one of the most sensitive indicators of traumatic brain injury. The test is short and simple, the client is asked to freely generate as many words as possible that begin with the letters F, A, and S, within a 1minute time limit for each letter. The individuals final score is the sum total of all admissible words (nouns, repetitions and incorrect words are excluded) across the three trials. Norms available in Spreen & Strauss (1991), GrothMarnat (1999), and Loonstra, Tarlow and Sellers (2001) 165


National Adult Reading Test – II (NART-II) Author: Publisher: Purpose:


Nelson, H. E., & Willison, J. NFER-Nelson Publishing Co., Ltd: England Developed to estimate the premorbid intelligence levels of adult patients suspected of suffering from intellectual deterioration Adults 5–15 minutes

The NART-II is a vocabulary-based measure for estimating an individual’s premorbid level of intellectual functioning, for clients where intellectual impairment or deterioration is suspected or indicated. It is commonly referred to as a ‘hold’ test, because reading ability is a well-learned, fairly stable skill that is relatively impervious to the effects of later brain injury. However, this assumption has been recently questioned by Riley & Simmonds (2003), who found that a NART given within 12 months of a severe traumatic brain injury runs the risk of significantly underestimating premorbid IQ. They recommend that a NART score only be used in conjunction with other methods of estimation, such as demographic information. Wisconsin Card Sorting Test (WCST) Author: Publisher: Purpose: For use with: Administration:

Grant, D. A., & Berg, E. A. Psychological Assessment Resources, Inc. Assess perseveration and abstract reasoning Child, adolescent, adult, elder adult 20–30 minutes

Delis-Kaplan Executive Function System (D-KEFS) Author: Publisher: Purpose: For use with: Administration:

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Delis, D. C., Kaplan, E., & Kramer, J. H. Psychological Assessment Resources, Inc. Assess key components of executive functions within verbal and spatial modalities Child, adolescent, adult, elder adult 90 minutes if all 9 tests are administered


Behavioural Assessment of the Dysexecutive Syndrome (BADS) Author: Publisher: Purpose: For use with: Administration:

Wilson, B. A., Alderman, N., Burgess, P., Emslie, H., & Evans, J. J. Psychological Assessment Resources, Inc. Assess impairment of executive functioning Adolescent, adult, elder adult 40 minutes (timed)

Brief Test of Attention™ (BTA™) Author: Publisher: Purpose: For use with: Administration:

Schretlen, D. Psychological Assessment Resources, Inc. Assess severity of attentional impairment. Adult, elder adult 10 minutes or less

Tests of Fitness to Plead The MacArthur Competence Assessment Tool — Criminal Adjudication (MacCAT-CA) Author: Publisher: Purpose: For use with: Administration:

Hoge, S. K., Bonnie, R. J., Poythress, N. G., and Monahan, J. Psychological Assessment Resources, Inc. Evaluate a defendant’s capacity to proceed to adjudication (i.e., fitness to plead) Adult, elder adult 25–55 minutes

The development of the MacArthur Structured Assessment of the Competencies of Criminal Defendants (MacSAC-CD) is a set of measures, which employs structured assessment methodologies and scoring procedures (Hoge, Bonnie, Poythress, Monahan, Eisenberg, & Faucht-Haviar, 1997). The MacSAC-CD includes measures of two components of adjudicative competence: competence to assist counsel and decisional competence. The competence to assist counsel measures assess capacities related to the minimum conditions legally required for participating in one’s own defense. The decisional competence measures assess capacities related to discrete decision making in the process of criminal adjudication. 167


Competence to assist counsel refers to the three minimum conditions legally required for participating in one’s own defense: (1) the capacity to understand the charges, the nature and purpose of criminal prosecution, and the basic elements of the adversary system; (2) the capacity to reason with information about the case; and (3) the capacity to appreciate one’s situation as a defendant in a criminal prosecution (Bonnie, 1993). The instrument was found to require extensive administration time and redundant items were disadvantageous so a shortened 22-item version was developed and called the MacArthur Competence Assessment Tool-Criminal Adjudication (MacCAT-CA). Competency Screening Test (CST) Author: Publisher:

Purpose:

Lipsitt, P. D., Lelos, D., & McGarry, A. L. Lipsitt, P. D., Lelos, D., & McGarry, A. L. (1971). Competency for trial: A screening instrument. American Journal of Psychiatry, 128, 105–109. Screening measure to identify fitness to stand trial

The Competency Screening Test (CST) was developed by Lipsitt, Lelos and McGarry (1971) as a brief screen to determine whether more extensive assessment was warranted. The CST consisted of 22 sentence-stems completed by the defendant. Scoring criteria were provided for each item. Three measurement constructs were used in creating the items: • potential for a constructive relationship between the client and lawyer • an awareness and understanding of the nature and object of the proceedings • an understanding of the consequences of the legal proceedings. Grisso (1986) criticised the CST constructs in that any of them may relate to the legal criteria of fitness to stand trial. Bagby, Nicholson, Rogers & Nussbaum (1992) in their study found six factors for the CST with fair to poor congruence coefficients across the original and cross-validation samples. As a screening measure, the CST had a false positive rate of 53.3% leading the researchers to call into question its utility as an effective screen. Validity Indicator Profile (VIP®) Author: Publisher: Purpose:


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Frederick, R. I. Pearson Assessments Provide support for conclusions that may impact the awarding of large sums of money or the determination of competence or culpability 18–69 years Verbal subtest: 20 minutes (78 items) Nonverbal subtest: 30 minutes (100 items)


Competency to Stand Trial Assessment Instrument (CAI) Administration:

Structured interview guide

The CAI identifies13 functions related to competency to stand trial (McGarry & Curran, 1973). It utilises an interview format with two or three recommended interview questions to sample the 13 functions. The CAI has been extensively criticised for (1) its untested assumptions that it adequately covers the functions associated with competence, and (2) its presumptions about competency which may unfairly penalise defendants (Brakel, 1974). Neither norms nor specific scoring criteria have been defined for the CAI. While the CAI lacks empirical support, it has reasonable face validity which increases its attractiveness for lawyers and judges. for Standing Trial for Defendants with Mental Retardation (CAST-MR) Author: Publisher: Purpose:


Everington, C., & Luckasson, R. A. IDS Publishing, Worthington, USA Standardised instrument for forensic evaluators to assess the competence of persons with mental retardation to stand trial Adults and adolescents 34–40 mins

The Competency Assessment Screening Test for Mentally Retarded Clients (Everington & Luckasson, 1992) is an instrument specifically developed for clients whose intellectual abilities are very limited (IQ < 70). The instrument comprised 3 sections. Section 1 includes 25 multiple choice questions to assess the person’s ‘understanding of basic legal terms’. An example of these items are: ‘Q: What does the judge do? Answer : (a) defends you, (b) decides the case,* (c) works for your lawyer’, or ‘Q: What is a felony? Answer: (a) a way to get off, (b) a very serious crime,* (c) a person who talks in court. The second section attempts to measure ‘the defendant’s capacity to assist their defence’. Again, this section includes multiple choice questions of the type: ‘Q: What if the police ask you to sign something and you don’t understand it? What would you do? Answer: (a) refuse to talk to the police, (b) sign it anyway, or (c) ask to see a lawyer’*. The third section of the CAST-MR attempts to measure the person’s capacity to meaningfully ‘understand case events’. Examples of questions from this section: ‘What were you doing that caused you to be arrested?’ and ‘Tell me what happened when the police came?’ Melton, Petrila, Poythress and Slobogin (1997) indicated some caution was needed with the (CAST-MR) as the norming for the instrument was based on ‘community’ sample, many of whom had a dual diagnosis. 169


Georgia Court Competency Test — Mississippi Version Revised (GCCT-MSH). Author: Publisher:

Wildman et al. Wildman, R. W., Batchelor, E. S., Thompson, I., Nelson, F. R., Moore, J. T., Patterson, M. E., & de Laosa, M. (1978). The Georgia Court Competency Test: An attempt to develop a rapid, quantitative measure of fitness for trial. Unpublished manuscript, Forensic Services Division, Central State Hospital, Milledgeville, GA The original GCCT was composed of 17 items that addressed courtroom and legal proceedings, current charges and possible penalties, and the lawyer–client relationship (Wildman et al., 1979). The GCCT-MSH utilises a semistructured interview format with available scoring criteria and cut scores. A subsequent revision added 4 more questions organised along the same content areas (Johnson & Mullett, 1987). Nicholson, Briggs, and Robertson (1988) report excellent interrater reliability and a good hit rate between the GCCT and independent recommendations of competency. The research has shown a stable 3-factor structure (general legal knowledge, courtroom layout, specific legal knowledge) underlying the instrument and results indicate it provides an efficient screen for fitness. Fitness Interview Test — Revised Edition (FIT-R) Author: Publisher: Purpose:

Roesch, R., Zapf, P., & Eaves, D. Professional Resource Press A structured interview for assessing a person’s fitness to stand trial

The Fitness Interview Test (Revised Edition; FIT; Roesch, Zapf, Eaves, & Webster, 1998) was developed in Canada as a screening assessment, which instructs the examiner that the co-occurrence of a mental disorder (incorporating mental retardation, formal thought disorder, concentration deficits, rate of thinking, delusions or hallucinations, memory deficits) and a psycho–legal impairment is sufficient for recommending further assessment. The FIT-R is individually administered in a semistructured format and takes approximately 30 minutes to administer. Each section comprises questions that tap into three different areas specified in Section 2 of the 1992 Canadian Criminal Code. Section I includes ‘Factual Knowledge of Criminal Procedure — Understand the Nature or Object of the Proceedings’. The following 6 subcomponents are assessed: understanding the arrest process, understanding the natutre and severity of the charges, understanding the role of key participants, 170


understanding of the legal process, understanding of pleas and understanding the court procedure. Section 2 covers ‘Appreciation of Personal Involvement in and Importance of the Proceedings — Understand the Possible Consequences of the Proceedings’. Three subcomponents of this section are appreciation of range and nature of possible penalties, appraisal of available legal defences and appraisal of likely outcome. Section 3 assesses ‘Ability to Participate in Defence — Communicate with Counsel’ and includes 7 subcomponents: capacity to communicate facts to lawyer, capacity to relate to lawyer, capacity to plan legal strategy, capacity to engage in own defence, capacity to engage in prosecution witnesses, capacity to testify relevantly and capacity to manage courtroom behaviour. Items are rated on a 3-point scale. A score of 2 indicates definite or serious impairment in the defendant’s ability to meet the legal criteria, a score of 1 indicates possible or mild impairment and a score of 0 indicates no impairment (Roesch, Zapf, Eaves, & Webster, 1998; Zapf, Roesch, & Viljoen, 2001). Defendants who score at an ‘unfit’ or a ‘questionably fit’ level are to be referred for a more thorough evaluation of fitness to stand trial. The main purpose, therefore, of the FIT is to identify, as early as possible, those individuals who are clearly fit to stand trial (Roesch, Zapf, Eaves, & Webster, 1998). Research (e.g., Zapf & Roesch, 1997; Zapf, Roesch, & Viljoen, 2001) has shown that the FIT has excellent utility as a screening instrument with minimal false negative errors (i.e., evaluate someone as fit who is truly unfit). The FIT also has demonstrated good interrater agreement. Much of the variance found in inter-rater agreements was attributed to the disciplinary background of the examiner. For example, lawyers will focus more on ‘crazy’ thinking, psychiatrists on psychotic conditions and psychologists place greater emphasis on communication skills and recall ability (Melton, Petrila, Poythress, & Slobogin, 1997; Menzies, et al., 1984). Nevertheless, reliability of competency decisions remains high, regardless of the disciplinary background of the examiner. While Birgden and Thomson (1999) reported there was as yet no existing assessment tool designed to assess fitness in Australia, Parton et al. (2004) have argued that the FIT utilises criteria relevant to Australian mental impairment legislation (i.e., South Australian legislation) that was very similar to the Canadian legislation. Furthermore, the semistructured interview format of the FIT allows for a contextualised inquiry, which can take into account the complexity of the trial, can be applied to the individual defendant’s situation and is related to legal, rather than clinical criteria.

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Tests of Mental Incompetence Rogers Criminal Responsibility Assessment Scale (R-CRAS) Author: Publisher: Purpose: For use with: Administration:

Rogers, R. Psychological Assessment Resources, Inc. Empirically based approach to evaluating criminal responsibility Adults Untimed

The Criminal Responsibility Assessment Scale remains one of the most useful aids for assessing systematically material needed in providing an ‘opinion’ about issues to do with ‘insanity’/‘mental competency’. This instrument represents the first serious attempt by mental health professionals to formalise clinical enquiry and decision making on the issue of legal insanity. While the development of the instrument was based largely around Canadian legislation, many of the elements are consistent with Australian legislation, and can be readily adapted. The Rogers — Criminal Responsibility Assessment Scale (R-CRAS) instrument comprised two sections: Section I determines the degree of mental impairment the defendant exhibits on various psychological variables. Section II provides a decision model base that incorporates various legal standards. Utilisation of the R-CRAS ensures the clinician undertakes a thorough assessment of the defendants behaviour at the time of the offence. The instrument ensures that the clinician covers the following issues: • At the time of the alleged offence did the defendant have a relevant mental impairment? • At the time of the alleged offence was the defendant’s behaviour affected by the mental impairment? • At the time of the alleged offence was there evidence to suggest that the defendant’s behaviour was affected by the impairment? • At the time of the alleged offence did the defendant know the nature and the quality of the conduct? • At the time of the alleged offence did the defendant know the conduct was wrong? • At the time of the alleged offence was the defendant able to control the conduct? While Melton et al. (1997) has criticised the instrument because it is seen to address the ‘ultimate issue’, Australian legal opinion has indicated that ‘experts’ in this area of law are invited to provide an opinion about the 172


ultimate issue (Judge Gordon Barratt, personal communication) provided they have conducted a thorough assessment of the matter. Such investigations are typically complex and require considerable collateral data especially witness statements.

Risk Assessment Instruments Hare Psychopathy Checklist-Revised (PCL-R): 2nd Ed. Author: Publisher: Purpose:


Hare, R. Pearson Assessments Make a diagnosis of psychopathy based on the individual’s functioning over time, support offender management decisions, provide solid empirical support for expert testimony 18 years + Structured interview, expert rating form, 90–120 minutes for the interview section; 60 minutes for the collateral review (20-item rating scale)

Psychopathy has been seen to be a strong predictor of recidivism. Psychopaths are characterised by their persistent disregard for social norms, impulsivity, unreliability, lack of empathy and failure to maintain enduring attachments to people. It is therefore not greatly surprising that the PCL-R consistently predicted recidivism in a study by Hemphill, Hare and Wong (1998). They found that psychopaths were three times more likely to recidivate and four times more likely to violently recidivate than nonpsychopaths. The PCL-R (Hare, 1991) is a 20-item rating scale that can be used in correctional and forensic psychiatric settings to assess the extent to which an individual matches the ‘prototypical psychopath’. Each item consists of a complex trait description, and ratings are made on a 3-point scale, on the basis of a semistructured interview and review of collateral information. Administration and scoring of the PCL-R usually takes about 2.5 to 3 hours. The PCL-R contains two factors: Factor 1 contains items that purport to measure the affective and interpersonal features of psychopathy (such as lack of empathy); while Factor 2 assesses aspects of antisocial behaviour. It provides a dimensional score, although a cutoff of 30 or more can also be used to classify individuals as psychopaths. The PCL-R has been widely validated on a number of different populations, including incarcerated adult male offenders, forensic psychiatric patients, female offenders and young offenders. It has excellent psychometric properties, and good normative data for male forensic populations. A 12-item screening version (PCL: SV; Hart, Cox & Hare, 1995) is also available. Training is required for administration of the PCL-R and the PCL-SV. 173


Factor 1: Unempathic Traits • glibness/superficial charm • grandiose sense of self-worth • pathological lying • conning/manipulative • lack of remorse or guilt • shallow affect • callousness/lack of empathy • failure to accept responsibility for actions. Factor 2: Antisocial Traits • parasitic lifestyle • poor behaviour controls • early behaviour problems • lack of realistic/long-term goals • impulsivity • irresponsibility • juvenile delinquency • revocation of conditional release. Hare Psychopathy Checklist: Screening Version (PCL-SV) Author: Publisher: Purpose:


Hart, S., Cox, D., & Hare, R. Pearson Assessments Highly correlated with the PCL-R test, the PCL:SV test takes about half as long to administer and is an effective screener for psychopathic (antisocial) disorders 18 years + Structured interview, expert rating form, 45 minutes for the interview section; 30 minutes for the collateral review (12-item rating scale).

HCR-20: Assessing Risk for Violence (Version 2) Author: Publisher: Purpose: For use with: Administration: 174

Webster, C., Douglas, K., Eaves, D., & Hart, S. Psychological Assessment Resources, Inc. 20-item checklist to assess the risk for future violent behaviour in criminal and psychiatric populations. Adults 20-item checklist


The HCR-20 (Webster, Douglas, Eaves, & Hart, 1997) is a structured guide for the assessment of risk of violence among civil psychiatric, forensic, and criminal justice populations. It contains 20 items (10 historical variables, 5 clinical variables, and 5 risk management factors) as well as the Hare PCLR. Items are scored as 0 (not present), 1 (possibly present) or 2 (definitely present), yielding a total score out of 40. Variables include relevant past, present, and future considerations. The 10 items of the Historical (H) scale are primarily static and unlikely to fluctuate over time, they include: • previous violence • young age at first violent incident • relationship instability • employment problems • substance use • major mental illness • psychopathy • early maladjustment • personality disorder • prior supervision failure. The Clinical (C) scale has 5 items referring to current mental, emotional, and psychiatric status, including dynamic risk markers that are changeable in nature: • lack of insight • negative attitudes • active symptoms of major mental illness, • impulsivity • unresponsive to treatment. The Risk Management (R) scale also has 5 items that are concerned with predicting the future social, living, and treatment circumstances of an individual and anticipating the reactions of the individual to those conditions: • plans lack feasibility • exposure to destabilisers • lack of personal support • noncompliance with remediation attempts • stress. The HCR-20 is derived conceptually through consideration of the relevant literature, the constructs represented by its items have support across many studies, and therefore it may generalise across a variety of settings and populations. 175


Sexual Violence Risk — 20 (SVR-20) Author: Publisher: Purpose: For use with: Administration:

Boer, D. P., Wilson, R. J., Gauthier, C. M., & Hart, S. D. Psychological Assessment Resources, Inc. Assess presence/absence of sexual violence risk factors Adults 20-item checklist

The SVR-20 (Boer, Wilson, Gauthier & Hart, 1997) is a 20 item guide for assessing violence risk in sex offenders developed along the same principles as the HCR-20. Like the HCR-20 it is also divided into three sections. Eleven items deal with psychosocial adjustment: • sexual deviation • victim of child abuse • cognitive impairment • suicidal/homicidal ideation • relationship/employment problems • previous offence history (nonsexual violent, nonviolent) • psychopathy • substance use problems • past supervision failure. Seven items deal with sexual offences: • high density offences • multiple offences • physical harm to victims • use of weapon • escalation in frequency of severity • extreme minimisation or denial • attitudes that support sex offences. Two items focus on future plans: • whether the offender lacks realistic plans • whether the offender has negative attitudes toward instruction. Also like the HCR-20, scoring is based on a 3-point scale from definitely not present, perhaps present, or definitely present, allowing for changes over time. Its effectiveness as a predictive device is being continually evaluated; currently, its primary usefulness lies in helping to structure clinical assessments, as there are no published translations of scores into risk categories.

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Level of Supervision Inventory — Revised (LSI-R) Author: Publisher: Purpose: For use with: Administration:

Andrews, D., & Bonta, J. Psychological Assessments Australia A risk/needs assessment for offender treatment planning and placement 16 years + Administered on paper, using the LSI-R Interview Guide and QuikScore form, which automatically transfers results through to the underlying scoring page. 30–45 minutes

The LSI-R (Andrews & Bonta, 1995) is a 54–item quantitative survey of attributes of offenders and their situations relevant to level of service decisions. It includes measurement of both static and dynamic risk factors, which are measured using either a yes/no or 0–3 rating scale (allowing for clinical judgement). Information is obtained using an interview guide to complete a QuikScore form. Dynamic risk factors also act as treatment targets for intervention. The LSI-R can be used to predict level of supervision required within the community and security classification within institutional settings. It can also be used to assess the likelihood of general recidivism. The LSI-R is normed on incarcerated male and female offenders, providing percentiles for comparison on a profile sheet. It has been used mainly for correctional management rather than outpatient management.

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The Violent Risk Appraisal Guide (VRAG) Author: Publisher:


Quinsey, V. L., Harris, G. T., Rice, M. E., & Cormier, C. A. Quinsey, V. L., Harris, G. T., Rice, M. E., & Cormier, C. A. (2005). Violent Offenders: Appraising and Managing Risk (2nd ed.). Washington, DC: American Psychological Association. Prediction of violent recidivism within a specified time period Adult males Based on file review and collection of collateral information

The Violence Risk Appraisal Guide (VRAG; Quinsey, Harris, Rice, & Cormier, 2005) is an actuarial tool for the prediction of violent recidivism among males with a history of serious violent or sexual offences. It provides a percentage probability for violent reoffending within a specified time period, compared to other offenders. The VRAG was developed through research into the recidivism of over 800 serious offenders, approximately half of whom were convicted offenders, the other half being forensic patients. It assesses the individual on 12 variables, although it can still be used if answers to a few of these are unknown. Scores for the VRAG variables are based on a comprehensive psychosocial history covering conduct in childhood, family background, antisocial and offence history, psychological issues, and details of the index offence. The VRAG score also incorporates the Hare PCL-R score. To score the VRAG accurately requires gathering of collateral information in regard to these factors, e.g., from family and friends, schools, correctional facilities, the police and courts, in addition to a clinical interview. It is used extensively through Canada, Britain, and in certain US jurisdictions. VRAG items and their scoring ranges are provided below: • • • • • • • • • • • • 178

lived with both parents until 16 elementary school maladjustment history of alcohol problems marital status criminal history (violence) bail breach age of offence victim injury female victim personality disorder schizophrenia PCL-R =

(Y= –2 to N = +3) (–1 to +5) (–1 to +2) (married = –2, single = +1) (–2 to +3) (0 to +3) (–5 to +2) (–2 to +2) (Y = –1, N = +1) (N = –2, Y = +3) (N = –3, Y = +1) (–5 to +12)


Sex Offender Risk Appraisal Guide (SORAG) Author: Publisher:


Quinsey, V. L., Harris, G. T., Rice, M. E., & Cormier, C. A. Quinsey, V. L., Harris, G. T., Rice, M. E., & Cormier, C. A. (2005). Violent Offenders: Appraising and Managing Risk (2nd ed.). Washington DC: American Psychological Association. Classifying recidivism risk among violent sexual offenders. Adult male sex offenders Based on file review, collection of collateral information and phallometric assessment.

The SORAG (Quinsey, Harris, Rice, & Cormier, 2005) was developed by the same group of Canadian researchers as the VRAG, and therefore shares many similarities in that is an actuarial tool, and scoring is based on a comprehensive psychosocial history and incorporates the PCL-R. However the SORAG uses 14 variables, and is used specifically for convicted male sex offenders. Although the SORAG may be one of the better currently available tools for classifying recidivism risk among violent sexual offenders, it has been considered inferior to other instruments (i.e., RRASOR, Static-99) for classifying risk of nonviolent reoffending which is often more typical among child sexual offenders. In addition it requires sexual deviance to be assessed phallometrically, which is an extremely uncommon method within Australia. It includes: • a psychopathy score • criminal history score for both nonviolent and violent offending • criminal history for sex offending • history of sexual offending against children or adults • age at index offence • never married • previous response to conditional release • phallometrically measured sexual deviance score • alcohol abuse • DSM Criteria (iii) for personality disorder.

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Violent Offender Risk Assessment Scale (VORAS) Author: Publisher:


Howells, K., Watt, B., Hall, G., & Baldwin, S. Howells, K., Watt, B., Hall, G., & Baldwin, S. (1997). Developing programmes for violent offenders. Legal and Criminological Psychology, 2, 117–128. Violence risk assessment Adults Hand-scoring based on file information

The VORAS (Howells, Watt, Hall, & Baldwin, 1997). is a brief rating scale assessing risk of violence among offenders. It was designed as a screening tool for program eligibility, and is easily coded from file information. The VORAS is made up of 7 items on 2 subscales: (a) level of harm of current and past offences, ranging from no harm to death; and (b) probability of violent reoffending, including age, criminal history, and substance use items. Part A scores range from 1 to 9, with a score of 5 or more considered high. Part B scores range from 1 to 21, with a score of 11 or more considered high. Part C is a final risk score of low, moderate, or high, based on a composite of Part A and B scores. To be designated high risk on Part C an offender must be assigned a high score on both Parts A and B, to be designated moderate on Part C a high score must be obtained on Part A or Part B, and to be designated low on Part C an offender must scores low on both Parts A and B. Recent validation research by Douglas, Yeomans and Boer (2005) has suggested that only Part B scores should be used in assessing risk. Violence Risk Scale Author: Publisher: Purpose: For use with:

Wong & Gordon Regional Psychiatric Centre (Prairies) and University of Saskatchewan Assessment of risk of violent offending Adults

The VRS (Wong & Gordon, 1999) integrates the assessment, prediction and treatment of violence using 20 Dynamic and 6 Static variables. It is based on the Risk, Need and Responsivity principles and also uses a modified Stages of Change model (Prochaska & DiClemente, 1992) to evaluate motivation for treatment and to measure treatment change. The VRS has been used in assessing over 2000 institutionalised offenders and is highly correlated with violent recidivism and with other major risk assessment instruments including the LSI-R and the PCL-R. The VRS enables guided clinical judgement while maintaining structure and quantitative rigour, and can be used for risk management in the community. It does not require specific professional qualifications for use, although training is required. 180


Rapid Risk Assessment of Sexual Reoffending (RRASOR) The RRASOR (Hanson, 1997a) uses only four pieces of information to assess for risk of sexual recidivism: • prior sex offences • offender’s current age (less than 25 years) • victim gender (male) • offenders relationship to victim (unrelated). By assigning points to the presence of such variables, the scale ranges from 0 (first time incest offenders, over 25 years of age) to 6 (extrafamilial boy– victim paedophiles with four or more previous convictions and released prior to the age of 25). Although extremely brief and excluding other potentially important information, the RRASOR has proven surprisingly robust in predicting recidivism risk and is well validated for use with adult male offenders with an intellectual disability. Its greatest value is its simplicity and affordability, being available without cost through the Canadian Solicitor General’s web site. Static-99 Author: Publisher:


Harris, A., Phenix, A., Hanson, R. K., & Thornton, D. STATIC-99 Coding Rules Revised — 2003, Canadian Correctional Service, available at www.sgc.gc.ca Sex offender risk assessment Adult males Based on file information, approximately 15 minutes

Since publication the Static-99 has become one of the most well known and widely used actuarial scales for sex offenders. It includes the four RRASOR items plus an additional six items. The Static-99 is superior to RRASOR in that it yields separate probabilities for risk of sexual recidivism and risk of any violent re-offending. It can be scored from record material alone, and can be used within corrections, community supervision and by mental health professionals. It includes: • prior sex offences: (a) charges, and (b) convictions • prior sentencing dates • any convictions for noncontact sex offences • index nonsexual violence • prior nonsexual violence • any unrelated victims 181


• • • •

any stranger victims any males victims young single.

By reviewing an offender’s file, scores are calculated using either a yes/no response or a structured scale ranging from 0 to 3. A score between 0 and 1 is considered low risk, between 2 and 3 is considered medium-low risk, between 4 and 5 is considered medium-high risk, and between 6 and 10 is considered high risk.

Criminogenic Need Assessment Instruments State-Trait Anger Expression Inventory (STAXI-2) Author: Publisher: Purpose: For use with: Administration:

Spielberger, C. D. Psychological Assessment Resources, Inc. Measure the experience, expression, and control of anger Adolescent, adult, elder adult 5–10 minutes to administer; 5 minutes to score

This is a 57-item self-report measure of the experience and expression of anger. The STAXI comprises 12 scales • state anger: measuring the individual’s present feeling of anger • state anger: feeling angry, measuring the individual’s feelings of angry emotions • state anger: feeling like expressing anger verbally • state anger: feeling like expressing anger physically • trait anger: measuring differences in the dispositional experience of anger • trait anger: angry temperament, the degree to which the individual is quick tempered and expresses angry feelings with little provocation • trait anger: angry reaction, the degree of response to criticism, perceived affronts and negative evaluations by others • anger expression out: the physical and/or verbal expression of aggressive behaviour towards people or objects • anger expression in: the suppression of intense angry feelings • anger control out: the amount of energy expended monitoring and preventing the outward experience and expression of anger

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• anger control: the amount of energy expending in calming down and reducing anger • anger expression index: the sum of the anger expression/control subscales. The STAXI has been widely used by researchers to measure anger in offender populations (Dalton, Blain, & Bezier, 1998; Myers & Monaco, 2000; Slaton, Kern & Curlette, 2000). Spielberger’s (1988) conceptualisation of anger distinguishes between anger as an emotional state (state anger) and anger as an enduring propensity to become angry (trait anger). He later distinguished between the experience of anger (control and effects) and the expression of anger (inward or outward). The scale has acceptable reliability and validity (Spielberger, 1991) and the factor structure of the anger expression scales has been confirmed in a prison population (Kroner & Reddon, 1995). Cornell, Peterson and Richards (1999) suggested that trait anger and anger-out should be most predictive of aggression. McDougall, Venables and Roger (1991) related scale scores to staff ratings of anger to demonstrate the validity of the trait scale. Novaco Anger Scale and Provocation Inventory (NAS-PI) Author: Publisher:

Purpose:

Novaco, R. W. Novaco, R. W. (2003). The Novaco Anger Scale and Provocation Inventory (NAS-PI). Los Angeles: Western Psychological Services Measure of anger disposition

The NAS (Novaco, 1994) is a tool designed to measure anger disposition in clinical and nonclinical populations. It is a self-report instrument that assesses cognitive, arousal, and behavioral aspects of anger (NAS Cognitive, NAS Arousal, and NAS Behavioral). These domains are also summed for a total score (NAS Total). The NAS was originally a two-part instrument, however what was initially Part B is now treated as a separate instrument called the Provocation Inventory (PI), which measures the intensity of anger in response to descriptions of anger-provoking situations. The NAS and PI have been shown to possess high internal consistency and testretest reliability, as well as good concurrent and predictive validity (Novaco, 1994).

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Subtle Substance Abuse Screening Inventory (SASSI-3) Author: Publisher: Purpose: For use with: Administration:

Miller, Roberts, Brooks, & Lazowski Harcourt Assessment Identify individuals who have a high probability of having a substance use disorder Adults Double-sided questionnaire, takes less than 15 minutes

The Substance Abuse Subtle Screening Inventory — 3 (SASSI-3; Miller, Roberts, Brooks, & Lazowski, 1997) is a brief screening tool designed to identify individuals who are likely to meet diagnostic criteria for having a substance dependence disorder. It is the third revision of a test (the SASSI) that was first published in 1988. The SASSI-3 (and it’s previous versions) was developed to identify substance use disorders irrespective of a client’s willingness to acknowledge or admit to having relevant symptoms of dependence or abuse. Based upon the assumption that some individuals may be unwilling to acknowledge their dependency, the test does not rely exclusively on forthright self-report, but includes both ‘face-valid’ and ‘subtle’ items. The ‘subtle’ items do not enquire explicitly about substance use, but have been found by the test developers to discriminate between those with or without substance use disorders. The SASSI-3 is a double-sided sheet of paper, with one side consisting of 67 true/false ‘subtle’ items (to be administered first). These items yield scores on 8 different subscales: symptoms of substance misuse (SYM), obvious attributes (OAT), subtle attributes (SAT), defensiveness (DEF), supplemental addiction measure (SAM), family vs. control subjects (FAM), correctional (COR), and random answering pattern (RAP). The second side of the SASSI3 (to be administered after the first side) contains 12 direct items dealing with alcohol use and 14 direct items dealing with other drug use, which use a 4point Likert-type scale (never, once or twice, several times, and repeatedly). These item sets are referred to as the ‘face-valid alcohol’ (FVA) and ‘facevalid other drugs’ (FVOD) subscales, respectively (Miller et al., 1997). The SYM, OAT, SAT, DEF, and SAM subscales from the first side of the test, combined with the 2 face-valid subscales from the second side (FVA and FVOD), are used in a set of 9 decision rules (which differ for males and females) to categorise individuals as having either a high or low probability of having a substance dependence disorder. While some authors have raised concerns regarding the usefulness of the subtle scales (e.g., Clements, 2002), suggesting that direct approaches are generally superior to indirect approaches, the SASSI may be particularly useful for use with forensic populations, where there may be a stronger incentive to conceal substance use problems.

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Psychological Inventory of Criminal Thinking Styles (PICTS Author: Publisher:

Purpose: For use with:

Walters, G. D. Walters, G. D. (1990). The criminal lifestyle: Patterns of serious criminal conduct. Newbury Park, CA: Sage Designed to measure thinking styles that are associated a criminal lifestyle Adults

The PICTS is an 80-item self-report questionnaire designed to measure thinking styles that are associated a criminal lifestyle (Walters, 1990). Responses are provided on a 4-point Likert-type scale (strongly agree, agree, uncertain, and disagree). It is composed of: • Two validity scales: revised Confusion scale (Cf-r) and revised Defensiveness scale (Df-r) • Eight thinking-style scales: Mollification scale (Mo), Cutoff scale (Co), Entitlement scale (En), Power Orientation scale (Po), Sentimentality scale (Sn), Superoptimism scale (So), Cognitive Indolence scale (Ci), and Discontinuity scale (Ds) • Four factor scales: Problem Avoidance scale (PRB), Interpersonal Hostility scale (HOS), Self-Assertion/Deception scale (AST), and Denial of Harm scale (DNH) • Two general content scales: Current Criminal Thinking scale (CUR) and Historical Criminal Thinking scale (HIS) • One special scale: Fear of Change scale (FOC). In contrast to the rational for the SASSI-3, Walters argues that self-report inventories may be underused in forensic settings because of the presumption that offenders are less upfront in discussing their past criminal actions and current criminal thinking. However, he argues that if crime is even partly based on belief systems, then self-report measures exploring criminal attitudes have an important role to play. Multiphasic Sex Inventory (MSI) Author: Publisher: Purpose: For use with:

Nichols, H. R., & Molinder, I. Available from Nichols and Molinder Assessments, Inc., 437 Bowes Drive, Tacoma, WA 98466, USA Assessing sex offenders to develop treatment plans, and to measure progress during treatment Adults convicted or accused of committing a sexual offence 185


The Multiphasic Sex Inventory (MSI; Nichols and Molinder, 1984) is a self-report questionnaire consisting of statements about sexual activities, problems and experiences, assessing an individual’s openness about deviant sexual behaviours. It is intended for use with assessing sex offenders to develop treatment plans, and to measure progress during treatment, and can be useful when an individual denies having committed a sexual offence. The Justification and Cognitive Distortions/Immaturity subscales of the MSI are measures of personal accountability in sexual offenders. Respondents answer true or false to items written to reflect their own perspective (e.g., ‘I feel like a victim as a result of the accusations against me.’). The Cognitive Distortions/Immaturity subscale (21 items) assesses the degree to which an offender sees themselves as the victim. The Justification subscale (24 items) measures the degree to which the offender shifts responsibility away from himself. Both subscales are prone to the same socially desirable response bias noted with other instruments of this nature. A more recent version of the test, the MSI-II, has been developed, however this test can only be scored and interpreted by sending completed answer sheets to Nichols & Molinder Assessments, Inc. MOLEST and RAPE Cognitive Distortions Scales Author: Publisher:

Bumby, K. M. Bumby, K. M. (1996) Assessing the cognitive distortions of child molesters and rapists: Development and validation of the MOLEST and RAPE scales. Sexual Abuse: A Journal of Research and Treatment 8, 37–54. Purpose: Assess the cognitive distortions of child molesters and rapists. The MOLEST and RAPE scales are specifically developed to measure the cognitive distortions of men who sexually assault children and women, respectively. The MOLEST scale is composed of 38 items, and the RAPE scale 36 items. Both are scored using a 4-point Likert scale from strongly agree to strongly disagree. The MOLEST scale distinguishes child molesters from rapists and control inmates. Both scales can be useful in assessing treatment progress.

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Buss-Durkee Hostility Inventory (BDHI) Author: Publisher:

Buss, A. H., & Durkee, A. Buss, A. H., & Durkee, A. (1957). An inventory for assessing different kinds of hostility. Journal of Consulting Psychology, 21, 343–349 The BDHI is one of the most frequently used measures of aggression. It uses 75 true-false items to measure 8 subscales: Assault (physical violation of another), Indirect Hostility (undirected aggression, e.g., door slamming), Irritability (explosions of negative affect with little provocation), Negativism (opositional behavior = refusal to cooperate), Resentment (feeling unjustly treated), Suspicion (distrustful projection of hostility),Verbal Hostility (arguing, shouting, threatening, or cursing), and Guilt (feelings of regret or of having done something wrong). Velicer Attitudes Toward Violence Scale (VATVS) Author: Publisher:

Velicer, W. F., Huckel, L. H., & Hansen, C. E. Velicer, W. F., Huckel, L. H., & Hansen, C. E. (1989). A measurement model for measuring attitudes toward violence. Personality and Social Psychology Bulletin, 15(3), 349–364 The VATVS is a measure of attitudes toward violence that includes 46 items, scored on a 7-point Likert-type scale, ranging from strongly disagree (1) to strongly agree (7). A higher score indicates a more favorable attitude toward violence, and there are no reverse-scored items. It consists of 5 subscales: Penal Code Violence, Violence in War, Corporal Punishment of Children, Extreme Interpersonal Violence, and Intimate Violence. Test of Self-Conscious Affect for Adults (TOSCA)

Author: Publisher:

Tangney, J. P. Tangney, J. P. (1990). Assessing individual differences in proneness to shame and guilt: Development of the self-conscious affect and attribution inventory. Journal of Personality and Social Psychology, 59, 102–111. Shame can be assessed using the 15-Scenario Test of Self-Conscious Affect for Adults (TOSCA; Tangney et al., 1989), and its forerunner, the 13 scenario SelfConscious Affect and Attribution Inventory (SCAAI; Tangney et al., 1988; Tangney, 1990). In these measures, respondents are presented with a series of day-to-day situations (e.g., ‘You make a big mistake on an important project at work. People were depending on you and your boss criticises you’). Each scenario is followed by responses representing descriptions of shame and guilt with respect to the specific context, which capture affective, cognitive and behavioral features associated with shame and guilt, respectively. Respondents 187


are asked to rate, on a 5-point scale, their likelihood of responding in each manner indicated, allowing for the possibility that some respondents may experience both shame and guilt in connection with a given situation. Barratt Impulsiveness Scale — 11(BIS-11) Author: Publisher:

Purpose:

Patton, J. H., Stanford, M. S., & Barratt, E. S. Patton, J. H., Stanford, M. S., & Barratt, E. S. (1995) Barratt impulsiveness scale, version 11 (BIS-11). In N. S. Schutte and J.M. Malouff (Eds.), Sourcebook of adult assessment (pp. 361–364). NY: Plenum Press. To measure impulsiveness

The BIS-11 (Patton, Stanford & Barratt, 1995), a 30-item self-report inventory to measure impulsiveness, is one of the oldest and widely used selfadministered impulsivity tests, having been first developed in 1959. It has 3 subscales: Attentional Impulsiveness (8 items), Motor Impulsiveness (10 items), and Nonplanning Impulsiveness (12 items). Items are rated from 1 (rarely/never) to 4 (almost always/always). Barratt (1994) provides evidence as to the factorial structure of the BIS. Interpersonal Reactivity Index (IRI) Author: Publisher:


Davis, M. H. Davis, M. H. (1980). A multidimensional approach to individual differences in empathy. JSAS Catalogue of Selected Documents in Psychology, 10(85) A measure of empathic ability Adults 28 items, 15 minutes

The IRI is a measure of empathic ability, developed initially for use within the general adult population, that has also been applied to offenders. The IRI consists of 28 items, constituting 4 subscales, of 7 items each: • Perspective taking (the dispositional tendency to adopt another’s perspective) • Empathic concern (self-reported tendency to experience feelings of concern for others) • Fantasy (indication of propensity to become imaginatively involved with fictional characters and situations) • Personal distress (the extent to which an individual feels distress as a result of witnessing the emotional distress of another). Each of the 28 items uses a 5-point Likert-type scale, ranging from 0 (does not describe me well), to 4 (describes me very well). 188


The South Oaks Gambling Screen (SOGS) Author: Publisher:

Purpose: Administration:

Lesieur, H. R., & Blume, S. B. Lesieur, H. R., & Blume, S. B. (1987) The South Oaks Gambling Screen (SOGS): A new instrument for the identification of pathological gamblers. American Journal of Psychiatry, 144(9), 1184–1188. Screening tool for pathological gambling 20-item questionnaire may be self-administered or administered by nonprofessional or professional interviewers.

The Lie/Bet Questionnaire Author: Publisher:

Purpose: Administration:

Johnson, E. E., Hamer, R., Nora, R. M. & Tan, B. Johnson, E. E., Hamer, R., Nora, R. M. & Tan, B. (1997) The Lie/Bet Questionnaire for Screening Pathological Gamblers. Psychological Reports, 80(1), 83–88. Screening for pathological gambling Two questions: (1) have you ever felt the need to bet more and more money? and (2) have you ever had to lie to people important to you about how much you gambled? Answering yes to one or both of these questions classifies the respondent as a pathological gambler on the 2-question test.

Gamblers Anonymous Twenty Questions (GA–20) Author: Publisher: Purpose:

Gamblers Anonymous Available at http://www.gamblersanonymous.org/20questions.html To help the individual decide if they ae a compulsive gambler and wants to stop gambling.

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Instruments for Assessing Malingering Structured Inventory of Malingered Symptomatology (SIMS) Author: Publisher: Purpose: For use with: Administration:

Widows, M. R., & Smith, G. P. Psychological Assessment Resources, Inc. 75-item screening instrument to assess for malingered psychopathology and neuropsychological symptoms 18yrs + self-report, approximately 10–15 minutes

Miller Forensic Assessment of Symptoms Test (M-FAST) Author: Publisher: Purpose: For use with: Administration:

Miller, H. A. Psychological Assessment Resources, Inc. Brief, 25-item screening interview to test exclusively for malingered psychiatric illness 18yrs + structured interview, approximately 5–10 minutes

Structured Interview of Reported Symptoms (SIRS) Author: Publisher: Purpose: For use with: Administration:

Rogers, R., Bagby, R. M., & Dickens, S. E. Psychological Assessment Resources, Inc. Systematically evaluate malingering and factitious disorders with psychological symptoms 18yrs + Structured interview, 172 items, approximately 1 hour

Test of Memory Malingering (TOMM) Author: Publisher: Purpose:


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Tombaugh, T. N. Pearson Assessments Provides a first step as part of a full psychological battery to help assess whether an individual is falsifying symptoms of memory impairment. 16 years + Paper and pencil, hand scoring, Approximately 15–25 minutes (50 single pictures presented twice and 50 two-choice panels).

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References to Legislation

Mental Health Act 2000 Criminal Code 1899

CASE LAW Dusky v. United States 362 U.S. 402 (1960) Miranda v. Arizona, 384 U.S. 436 (1966) R v. Presser [1958] VR 45 R v Pritchard (1836) 7 C & P 303 LEGISLATION

COMMONWEALTH Criminal Code Act 1995

NEW SOUTH WALES Crimes Legislation Amendment (Criminal Justice Interventions) Act 2002 Bail Act 1978 Crimes (Sentencing Procedure) Act 1999 New South Wales Mental Health (Criminal Procedure) Act 1990

VICTORIA Sentencing Act 1991 Corrections Act 1986 Crimes (Mental Impairment and Fitness to be Tried) Act 1997

AUSTRALIAN CAPITAL TERRITORY Rehabilitation of Offenders (Interim) Act 2001 Periodic Detention Act 1995 Crimes Act 1900 Mental Health (Treatment and Care) Act 1994

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SOUTH AUSTRALIA Correctional Services Act 1982 Criminal Law Consolidation Act 1995 Criminal Law Consolidation (Mental Health) Act 1995 Criminal Law (Sentencing) Act 1988

NORTHERN TERRITORY Sentencing Act Prisons (Correctional Services) Act 1980 Criminal Code Act Criminal Code Amendment — Mental Impairment and Unfitness to be Tried Act 2002

TASMANIA Sentencing Act 1997 Corrections Act 1997 Criminal Code Act 1924 Criminal Justice (Mental Impairment) Act 1999

WESTERN AUSTRALIA Sentence Administration Act 1995 & 1999 Prisons Act 1981

QUEENSLAND

Criminal Code

Corrective Services Act 2006

Mental Health Act 1996

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Featuring numerous case studies to illustrate the applicability of the information provided, this book serves as an excellent text for all psychologists considering a career in forensic work as well as any working psychologist who may find themselves in a court setting.

The book achieves a fine balance between the need to be at once comprehensive and practical. If readers adhere to the sage advice contained in this book it will leave little room for judges to complain about the quality of psychological reports as they often have been justified in doing so in the past. James R. P. Ogloff, Professor of Clinical Forensic Psychology and Director, Centre for Behavioural Science, Monash University

logists e for Psycho id u G l a c ti c A Pra


www. AUSTRALIAN ACADEMIC PRESS

.com

WRITING REPORTS FOR COURT

This text examines relevant mental health state legislation relating to criminal, civil and family courts and then sets out a logical structure for writing reports for such matters. The use of psychological tests and their utility in providing useful objective data for courts is also examined. Three chapters are devoted to questions central to an expert offering an ‘opinion’ in court.

A Practical Guide for Psychologists Working in Forensic Contexts Jack White, Andrew Day and Louisa Hackett

Writing Reports for Court: A Practical Guide for Psychologists Working in Forensic Contexts is an invaluable aid for psychologists working in the legal system. The credibility of a psychologist called upon to prepare a report for court as an expert witness will be questioned if the document presented is viewed as poor. The court will place little weight on the report and the psychologist’s professional reputation will be placed at risk. Complaints against psychologists to registration boards, ethics committees and litigation proceedings are frequently the consequence of poor psychological reports.

WRITING REPORTS FOR COURT gists for Psycholo e id u G l a c ti A Prac



Writing Reports for Court: A Practical Guide for Psychologists Working in Forensic Contexts

Writing Forensic Reports: A Guide for Mental Health Professionals

Academic Writing: A Practical Guide for Students

Practical Ethics for Psychologists: A Positive Approach

A Practical Guide for Translators

Culture Competence in Forensic Mental Health: A Guide for Psychiatrists, Psychologists, and Attorneys

Continuing Professional Development for Clinical Psychologists: A Practical Handbook

Working with Adolescents: A Guide for Practitioners

Practical Psychology for Forensic Investigations and Prosecutions

Working with Substance Users: A Practical Guide

A Practical Guide to Working with TRIPS

Practical Psychology for Forensic Investigations and Prosecutions

Ethics for Psychologists, Second Edition

Multivariable analysis: a practical guide for clinicians

Corporate Governance: A practical guide for accountants

Gigging: A Practical Guide for Musicians

Immunocytochemistry: A Practical Guide for Biomedical Research

Technologies for Education: A Practical Guide

Writing and speaking for excellence: a guide for physicians

Research for Development: A Practical Guide

Action Learning: A Practical Guide for Managers

ADMET for Medicinal Chemists: A Practical Guide

Copyright for Schools: A Practical Guide

Prescriptive Authority for Psychologists: A History and Guide

Family work for schizophrenia: a practical guide

A Practical Guide for SystemVerilog Assertions

A Practical Guide for the Perfumer

Risk Stratification: A Practical Guide for Clinicians

Cancer screening: a practical guide for physicians

Research for Development: A Practical Guide

Laboratory Hemostasis: A Practical Guide for Pathologists

Writing Reports for Court: A Practical Guide for Psychologists Working in Forensic Contexts

Writing Forensic Reports: A Guide for Mental Health Professionals

Academic Writing: A Practical Guide for Students

Practical Ethics for Psychologists: A Positive Approach

A Practical Guide for Translators

Culture Competence in Forensic Mental Health: A Guide for Psychiatrists, Psychologists, and Attorneys

Continuing Professional Development for Clinical Psychologists: A Practical Handbook

Working with Adolescents: A Guide for Practitioners

Practical Psychology for Forensic Investigations and Prosecutions

Working with Substance Users: A Practical Guide

A Practical Guide to Working with TRIPS

Practical Psychology for Forensic Investigations and Prosecutions

Ethics for Psychologists, Second Edition

Multivariable analysis: a practical guide for clinicians

Corporate Governance: A practical guide for accountants

Gigging: A Practical Guide for Musicians

Immunocytochemistry: A Practical Guide for Biomedical Research

Technologies for Education: A Practical Guide

Writing and speaking for excellence: a guide for physicians

Research for Development: A Practical Guide

Action Learning: A Practical Guide for Managers

ADMET for Medicinal Chemists: A Practical Guide

Copyright for Schools: A Practical Guide

Prescriptive Authority for Psychologists: A History and Guide

Family work for schizophrenia: a practical guide

A Practical Guide for SystemVerilog Assertions

A Practical Guide for the Perfumer

Risk Stratification: A Practical Guide for Clinicians

Cancer screening: a practical guide for physicians

Research for Development: A Practical Guide

Laboratory Hemostasis: A Practical Guide for Pathologists

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