Commentary

A section of this judgment is headed ‘Directions concerning the medical expert’. There was no medical expert in this case. There was a report from a psychotherapist. The psychotherapist in question is not registered with the General Medical Council or the Health and Care Professions Council, and it appears that she is not registered with the UK Council of Psychotherapy or the British Association of Counselling and Psychotherapy. This had been an issue in Dosti v SSHD [2002] UKIAT 04021 at §11 where it is stated that there was some doubt as to whether an accredited psychotherapist was an appropriate person to give an expert report on the psychiatric health of a claimant. In this case the tribunal had no evidence as to any accreditation whatsoever. 

The title ‘psychotherapist’ is not protected. Some psychotherapists are medically qualified and, if they are appropriately trained, they will be listed as medical psychotherapists by the General Medical Council on its specialist register. Many psychologists, such as clinical psychologists, counselling psychologists and forensic psychologists practise psychotherapy and are registered with the Health and Care Professions Council. The title ‘psychologist’ is not, of itself, regulated or protected.. 

This appears to be yet another case in which an unregulated expert has provided evidence to a court or tribunal. The issue of unregulated psychologists in the Family Court was addressed by McFarlane P in Re C (‘Parental Alienation’; Instruction of Expert) [2023] EWHC 345 (Fam). In this case when proceedings had commenced, the children’s father had made an application for the instruction of a ‘child and adolescent psychiatrist’ or a ‘child psychologist’. The court permitted the appointment of a child and adolescent psychiatrist or a psychologist. The court went on to provide for the joint instruction of ‘Dr A’, a psychologist. It does not appear that her CV was ever submitted to the court and only subsequently was it ascertained that she did not have a doctorate. The President observed that her CV was “a diffuse and confusing narrative of attendance at courses and activities. It would have been hard for the parties and the court to drill down to see what her underlying qualifications were”.

The President noted a lack of rigour arose from the court indicating in its initial order that either ‘a psychiatrist or a psychologist’ was to be instructed. He said that it is not necessary to do more than state that plainly there is a significant difference between the two. He said that a psychiatrist is a doctor who is a specialist in the diagnosis and treatment of mental illness, whereas a psychologist’s skill is in assessing personality, intellectual functioning and behaviour. Whilst there may be a crossover between the two, their focus, skill and training are different.

Acknowledging that the open-house nature of the term ‘psychologist’ is unhelpful and potentially confusing, he said that work should be done to assist parties and the court at the initial stage of choosing an expert by establishing a template into which the basic qualifications of any ‘psychologist’ should be entered. He suggested that such a template that would greatly assist courts in divining the basic level of expertise of a potential expert witness. He said that it would remain open to the court to instruct any person who it considers is capable of discharging the expert role in each case, but, particularly where a proposed psychological expert is un-registered, the court would be on notice to the need to look more carefully at the underlying evidence of appropriate expertise.

The case of P v M [2023] EWFC 254, involved the same unregulated expert as in Re C: Melanie Gill, who has a third-class honours degree in psychology from Brunel University awarded in 1980 and a postgraduate diploma in child forensics. In this case, her report ran to some 100 pages including appendices, her assessment was based upon what she described as attachment science and the detail of the report and her findings were couched in highly technical language. It was not at all easy for a lay person to follow. In assessing the parties Ms Gill relied upon their responses within a series of structured interviews. There were some conventional interviews with the parents and children, but there was little information about those in the report save for some short excerpts which were difficult to follow. Absent from the report was any reference to the findings at the fact finding hearing in 2017, the observations of contact or the wider evidence in the case.

The judge said that it was not unusual in her experience for an expert to interview the parents and conduct psychological testing before reading the papers, but it was unusual for there to be so little reference to the wider context in the overall assessment.  Notwithstanding Ms. Gill's assurances that she had read all the papers and taken all the evidence into account, the judge considered that her assessment was narrowly based on her own interpretation of the results of the structured attachment based interviews she carried out rather than upon the evidence as a whole.

In his cross examination of Ms Gill and final submissions, counsel for mother challenged Ms Gill's qualifications, as a non-registered psychologist, to conclude that the mother was suffering from post-traumatic stress. He also challenged Ms Gill's decision to accept her original instructions to carry out cognitive assessments of the family and to consider whether either of the parents was suffering from a psychiatric or psychological condition.  Ms Gill defended her conduct and methodology. She argued that post-traumatic stress is not the same thing as 'post-traumatic stress disorder', accepting that the latter is a diagnosis which she was not qualified to make.  She also said that whilst she was not qualified to diagnose a psychological or psychiatric disorder she was trained to recognise the absence of such.  Had she thought that any of the parties in this case to be suffering from such a condition she said she would have consulted a suitably qualified colleague. It is puzzling that someone who is not qualified to diagnose a psychological or psychiatric disorder can rule out the existence of a psychological or psychiatric disorder.

Many of the issues about Ms Gill in this case replicated those which arose in Re C. With respect to the submissions of counsel for the mother and following on from the decision in the Court of Appeal, the judge concluded that she should make no further comment on those matters. It was not necessary for her to do so, Ms Gill was not represented, and this was not the appropriate forum.

In Haczelski v Poland [2024] EWHC 459 (Admin) there was putative fresh evidence in the form of a report by Grace Chukwu an "Independent Parenting Assessor, qualified Counsellor and Psychologist". It is not clear whether ‘qualified’ refers to ‘Counsellor’ or ‘Psychologist’. The expert has a number of advanced diplomas in various areas of counselling but she is not registered as a counsellor or psychotherapist on either the BACP or BABCP registers. It appears that she has been a ‘psychologist’ since she obtained her Psychology Level 3 Diploma, Association of Learning, in 2022. This diploma is described as “an excellent way for those already working in child care to gain marketable skills in child psychology” (https://www.findcourses.co.uk/training/association-of-learning/psychology-child-psychology-level-3-1956757 ) and it “provides you with the skills required to become a competent and successful psychologist” (https://associationoflearning.com/product/psychology-diploma-level-3/ ). The 'Association of Learning' says it is accredited by the National Institution of Qualifications (NIOQ) which is not listed with Ofqual. 

Coventry City Council v XX [2024] EWFC 249 (B) illustrates the risks when an ‘independent’ social worker gives psychological evidence. She described how her

“areas of expertise are in neurodiversity, developmental trauma and attachment. I am currently completing a post-graduate level Certificate in Traumatic Stress Studies led by world renowned psychiatrist, trauma expert and author, Dr Bessel van der Kolk."

There were many aspects of Ms ISW's evidence which the court found incredibly troubling. The judge was absolutely clear that she had allowed her own experiences and interests and her sympathy for what these parents had been through to cloud her judgment. She had gone way beyond her remit and expertise and confused her role as an independent social worker with that of a psychologist. It was apparent that she had a great interest in psychology, but she was not trained in that field, although that did not appear to prevent her from forming her own views and ignoring the recommendation of the court appointed psychologist, who had over twenty-five years' experience of preparing court reports. She was not qualified to diagnose neurodiversity (however much she may know as a result of her experiences). For reasons the court could not understand, she seemed reluctant to accept the recommendations which the court appointed psychologist had made for each of the parents, preferring her own view of what kind of therapy might be the most effective. She had neither the qualifications nor experience to do so. It seemed to the judge that in appointing herself as social worker, psychologist, therapist and judge, Ms ISW had fallen into significant error.

Learning points:

General

• Particular care is needed in relying on a history taken from a subject with convictions related to dishonesty and the more so if the dishonesty is not admitted.

Lawyers

• A psychotherapist is not necessarily a medical expert.

• Particularly where it is necessary to have regard to a subject’s medical records, consider instructing a medical expert.

• It is considered good professional practice for UK doctors to display their GMC number and registered name. They are professionally required to provide this information to patients or others who ask for it. Potential medical experts can be identified by their GMC number.

• In some cases, it may be appropriate to instruct a psychologist. Many psychologists, such as clinical psychologists and forensic psychologists, who often contribute to multiprofessional clinical records, will be able to interpret medical records.

• Psychologists registered with the Health and Care Professions Council (HCPC) are not legally required to display publicly their registration number, but professional bodies strongly recommend it. The HCPC and the British Psychological Society encourage this practice to assure the public that the practitioner is legitimately registered and regulated.  

• Where experts rely on self-report questionnaires, such as the PHQ-9, HADS or GAD-7 be mindful that it is wholly possible to provide whatever answers someone wants to in order to appear as ill, or as well, as the person wants to.

• Where experts rely on self-report questionnaires, such as the PHQ-9, HADS or GAD-7 it may be appropriate to ask if the measure has been validated for use in assessing:

1. Asylum seekers, defendants in criminal cases, claimants in personal injury cases, applicants for benefits and persons alleging discrimination, etc, where it would be naive to discount the possibility of an individual fabricating or exaggerating symptoms of mental illness.

2. Parents in family cases where it would be naive to discount the possibility of a parent denying or minimising symptoms of mental illness.

• The more a diagnosis is dependent on assuming that the account given by the subject is to be believed, the less likely it is that significant weight should be attached to it.

Experts

• Set out the substance of all material instructions, including any verbal instructions, and be in a position to provide, if requested, a copy of the letter of instruction.        

• If commenting on the availability of medical treatment in a foreign country, the tribunal needs to know your qualifications to do so.

• The subject’s history should be triangulated against their medical records, in particular their general practitioner records.

• Do not advocate for the subject.

• Have regard to inconsistencies between the subject’s self-reported history and other evidence.

•  Be clear as to whether anyone else was present at the consultation.

•  If using self-report questionnaires, such as the PHQ-9 or GAD-7, or considering evidence based thereupon, be mindful that it is wholly possible to provide whatever answers someone wants to in order to appear as ill, or as well, as the person wants to.

• An expert’s report should include a declaration or statement to the effect that the expert understands and acknowledges their professional obligations to the court or tribunal as an expert witness, namely to provide information and express opinions independently; to consider all material facts; to be objective and unbiased; to avoid advocacy; and to be fully informed.

Case

The remaking of the appellant's appeal, against the respondent's refusal on 19 July 2022 of his human rights claim, in the context of a deportation order having been made against him on 10 December 2020. The appellant, a Pakistani national, is a 'foreign criminal,' as defined in section 117D of the Nationality, Immigration and Asylum Act 2002. 

The appellant was convicted of conspiracy to defraud and facilitating acquisition of criminal property (money laundering) offences and sentenced on 12 March 2020 to concurrent prison sentences of six years and five years, respectively. The trial Judge found that he played a leading role (in contrast to his suggestion that he had not and was merely negligent). The offences resulted in what were described as 'catastrophic' financial losses, including of life savings, suffered by elderly and vulnerable people, in a so-called 'boiler room' fraud. I also should add, to avoid any confusion and because of an initial suggestion by his Counsel that he had previously been of good character, that the appellant had previously received a caution for theft: shoplifting in 2012, shortly after his arrival on a student visa in 2010, although that is, of course, a minor matter. Nevertheless, the index offences, said to have been committed between 2013 and 2016, followed from the earlier 2012 offence which also involved dishonesty.

The appellant relied on significant mental health issues from which each family member suffered, and because of which they were dependant on each other as a family unit, could not be separated, and could not live in Pakistan. The appellant's wife is a British national but was born and brought up as a child in Pakistan, where she continues to have family members. The appellant has two step-children: a stepson, born on 10 December 1996 and a stepdaughter born on 10 September 1995. They are British nationals. The wife's and children's health issues had originated in the children's biological father dying in a road traffic accident in 2007. As a result, they suffered significant mental health issues. Shortly after the appellant married his wife in 2013, there was a second road traffic accident during which the appellant's wife was said to be significantly physically injured. This was a trigger for further PTSD for herself and for her children. The appellant's wife was also made redundant around the same time, in 2013, when she became financially dependent on the appellant.

Expert evidence (‘Directions concerning the medical [sic] expert’)

At the last re-making hearing on 30 April, part-way through one of the witnesses' evidence, it became apparent that there had been an earlier report of an expert psychotherapist, Ms T, which had not been included by the appellant in the bundle, but had apparently been included in a version of a bundle before the First-tier Tribunal. As a result of that, this Tribunal asked to see a copy, which was provided, in light of which the respondent had significant concerns about the reliability of the expert reports. The Tribunal had in mind the authority of TUI UK Ltd v Griffiths [2023] UKSC 48 relating to potential criticisms of witnesses, including expert witnesses, and consequently, the Tribunal adjourned the hearing to provide Ms T an opportunity to respond. The Tribunal gave directions on 2 May 2025, that the appellant's solicitors should file a position statement from Ms T setting out with what documents she was provided in producing the two reports and to provide copies of those documents, including any letters of instruction. Following that, the respondent then had leave to confirm its position on the contents of the reports, and following on from that, the expert had leave to respond to those concerns, and the appellant had leave to tender the expert as a witness at the hearing.

In relation to those directions, Ms T confirmed the documents that she had been provided in writing her reports. On further enquiries from the Tribunal as to any written instructions, she confirmed that her instructions were only conveyed verbally, either from the former solicitors or from the appellant himself. The respondent filed and served submissions which contained substantial criticisms of Ms T's reports. On additional enquiries from the Tribunal, Ms T was asked if she wished to reply, as per the directions, to the respondent's criticism. The appellant's solicitors indicated that there was no further response from her. In the circumstances, the respondent invited the tribunal to place no weight on her reports. While she has been given an opportunity to address the criticisms, she had apparently remained silent. The Tribunal did not know why, or if she resiled from the contents of her reports. The appellant’s counsel was unable to assist.

The respondent's position was that the Tribunal should place no weight on Ms T's reports. Without them, the medical evidence was scant, beyond the oral evidence.

Findings:

In considering “the expert medical [sic] evidence”, the Tribunal was conscious of the need to do so in the round, but had to start somewhere. Of note, there were two reports dated 3 November 2022 and 30 May 2024, with virtually identical wording. The expert's subsequent explanation for this was that little had changed. The second report, although lengthy, was merely by way of an update, and set out the significant mental health issues based on GAD-7 and PHQ-9 scores as well as the telephone assessments with the appellant and his wife.

The respondent raised a number of concerns, as set out its written submissions. 

The first was that the expert is a psychotherapist and not a psychiatrist. Doubts as to the expertise of psychotherapists were set out in Dosti v SSHD [2002] UKIAT 04021 at §11 where it is stated that there was some doubt as to whether an accredited psychotherapist was an appropriate person to give an expert report on the psychiatric health of a claimant.

Second, the report did not specify Ms T's qualifications for commenting on the availability of medical treatment in Pakistan.

Third, relying on headnotes (3) to (5) of HA (expert evidence; mental health) Sri Lanka [2022] UKUT 111, Ms T did not have full medical records for any of the appellant, his wife or the two children. Prior to a first assessment on 3 November 2022, the most recent medical document for the appellant had been dated over two years earlier, on 31 January 2020. Neither the 2022 nor 2024 reports contained a section setting out the documents before the expert. Ms T claimed later, in response to this Tribunal's orders requiring her to clarify what documents she had on relied on in producing the 30 May 2024 report, it was a “Talking Therapies" letter which called into question of when she had completed the report.

Fourth, Ms T had not given a neutral report. She had engaged in inappropriate advocacy on behalf of appellant. It had been drafted on the basis that the appeal should be allowed, as set out, for example, in the 2024 report, which stated:

"I write in detail below why Omer's appeal against the deportation order should be granted ...."

No letters of instruction had been provided, only oral instructions from either the instructing solicitors or from the appellant. Ms T had not complied fully with her professional obligations of objectivity, see headnote (1) of HA.

Fifth, although purporting to be extensive, the second report was virtually identical to the first. It was not sufficient for Ms T to claim that this was because there had been no changes in presentation. The summaries of the 'PHQ-9' scores in 2022 and 2024 were virtually identical, with the report stating that the appellant and his wife were experiencing serious depressive symptoms. It was not clear how that conclusion could be reached for the appellant's wife in May 2024, when the reports suggested that the wife was last examined in November 2022. The 2024 report repeated, as a fact, that the daughter and son were not familiar with the culture in Pakistan, which did not account for the daughter visiting Pakistan with her mother from 4 November 2024, at time when Ms T had apparently considered the Talking Therapy correspondence of 19 November 2024.

Sixth, the report was inconsistent with oral evidence that the appellant's wife had been present for the assessment on 30 May 2024 while the report recorded only the appellant's presence.

Seventh, the PHQ-9 and GAD-7 tests were based on self-reported comments, as was a PCL-5 assessment. This Tribunal had expressed significant reservations about the nature of these tests in HA. "It is wholly possible to provide whatever answers someone wants to in order to appear as ill, or as well, as the person wants to."

Eighth, the report contained contradictory findings as to the appellant's suicidal ideation. They indicated that the criterion for suicidal ideation was met, in both 2022 and 2024. Yet at §9 of both reports, the expert stated: "Currently in England Omer does not feel suicidal as he has his wife who is his only support in this country". The report also contradicted the medical evidence for the appellant's wife, describing her as meeting the test for suicidal ideation on 4 November 2022. Only weeks later, the appellant's wife's GP reported her on 18 January 2023 as having "no suicidal thoughts" and "no risk of self harm."

Ninth, in both reports it was recorded that the daughter was taking her medication to manage her anxiety, propranolol, but that did not sufficiently reflect that this was only from "time to time" (confirmed in a letter from her GP dated 24 November 2022).

Tenth, in relation to the findings of the appellant's ties to Pakistan; the availability of medical treatment there; the expert's recommendations; and the appellant's claimed history of abuse and PTSD, Ms T had not referred to (and presumably not considered) the appellant having made numerous trips to Pakistan since first entering the UK, up to 2019, when he was initially imprisoned and then was the subject of a deportation order (after which, if he left the UK voluntarily, he could not return for a lengthy period).

Ms T had assumed in 2022 that the appellant's sister and mother would move from Pakistan to the UK on a permanent basis, as his sister was intending to study for a second master's degree and his mother would be joining her as her dependent. By 2024, the appellant's sister and mother were intending to move to Germany. By the date of this hearing, the sister was studying in Berlin but wanted to settle in before her mother joined her. The appellant's mother still lived in Pakistan.

Eleventh, Ms T has relied on the account given by the appellant and his wife, in providing the diagnoses and opinion. Noting headnote (2) of JL (medical reports - credibility) China [2013] UKUT 145, the more a diagnosis is dependent on assuming that the account given by the appellant was to be believed, the less likely it is that significant weight should be attached to it.

Without criticism of the appellant’s counsel, he had no substantive answer to any of these criticisms, and the tribunal accepted that they were unanswerable.

The reports were based on unrecorded oral instructions, in part from the appellant. The reports made no reference to medical records. In response to directions from this Tribunal, Ms T listed a limited number of documents, which were mainly not medical documents at all and of the ones that were, they were not the full GP records, only very limited letters from doctors. Of those provided, they appeared to raise questions about Ms T's assessment, such as the appellant's wife being suicidal in later 2022, but apparently only a few weeks later displaying no such risk, without any explanation.

The reports were based on scoring methodology, such as namely PHQ-9 and GAD-7 as to which this Tribunal had expressed reservations because the scores reflected what those interviewed chose to say. The explanation that the scores were identical in 2022 and 2024 because the situation remained unchanged was unsustainable, on the basis that the 2024 report suggested appellant's wife had not been interviewed or assessed in 2024.

The reports were also clearly advocating on behalf of the appellant and his family. The 2024 report stated:

"I write in detail below why Omer's appeal against the deportation order should be granted due to compelling circumstances involving his wife and stepchildren...."

"It would not be deemed appropriate to expect the children to leave the country as they are not familiar with the culture and have not adapted to such big settlement changes before."

"It would be unreasonable to expect Omer to continue his life alone in Pakistan...."

"If Omer is deported back to Pakistan, it is evident his mental health will become worse. He will encounter unjustifiably harsh consequences which could increase the risk of suicide."

"Omer expressed that he is aware of his negligence which has led him to serve this sentence, and describes this as a life lesson... He expressed that he failed to do due diligence in the contractual business with Zulfiqar which was due to being new to the country and was not aware of the due diligence he was required to do and blindly trusting Zulfiqar to have pure intentions."

What was also apparent from the last reference was the appellant's continuing denial, as recently as May 2024, of any dishonest intention, despite being convicted of index offences involving his dishonesty. One needed only to consider again the sentencing remarks of the Judge, cited in the respondent's decision to refuse the human rights claim, who stated:

"Omer Iqbal, you undoubtedly had a leading role...You were his business partner [Zulkhair Ali's], you advised him as to the viability of the fraud. ...You were closely involved in the administration."

It was even more concerning that Ms T did not apparently assess the appellant's implicit denial of dishonest intent, when considering the reliability of the PHQ-9 and GAD-7 tools, produced without full medical records.

The reports provided only limited comments on the availability of medical treatment for the appellant and his family in Pakistan. This is limited to Ms T's comment that CBT for the appellant may be more effective in the UK than Pakistan, due to Pakistan being the main trigger for his PSTD and because he would be returning alone, without support.

On a final point, the 2022 and 2024 reports did not include any statement from Ms T that she understood and acknowledged her professional obligations to this Tribunal as an expert witness, namely to provide information and express opinions independently; to consider all material facts; to be objective and unbiased; to avoid advocacy; and to be fully informed.

Without hesitation, the Tribunal attached no weight whatsoever to Ms T's reports, for the reasons already outlined. The reports were plainly not objective or independent, were not based on full medical records, crossed the line into advocating for the appellant and his family, relied heavily on PHQ-9 and GAD-7 scores, purportedly updated, when the second report suggested that the appellant's wife had not been examined on the second occasion, and with inconsistencies to the background medical records, such as was available. Ms T has been invited to answer those concerns but had not responded.