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Evidentiary reliability and the meaning of words
Keith Rix 588

Evidentiary reliability and the meaning of words

byKeith Rix

 
Commentary
General

This case has a number of important features of general interest.

It illustrates the importance of assessing the reliability of a subject’s account. This is not the same as advising the court as to the reliability of the subject. It is the reliability of the account that is being assessed, not the reliability of the person giving the account. This is why it is good practice to open the Opinion section of an expert report with an introductory section sometimes headed ‘Evaluation of evidence’ or sometimes ‘Clinical plausibility’.

That there was no challenge to the reliability of the experts’ evidence is not surprising. They explained how they assessed the appellant and the duration of the assessments.

It appears that an attempt to undermine the expert evidence was based on the fact that in regard to suicide risk, the risk had been described as “significant” rather than as “substantial”. However, the court did not regard the qualifier as material adding: “Medical reports of this kind should not be parsed as if they were statutes.” It is a similar comment to that of Williams J in LKM v NPM [2023] EWFC 118, where he complained about counsel’s “too narrow textual analysis” of the medical expert’s report. It is difficult to see what the learning point here is for experts. It is not to respond in cross-examination, “Your Honour, I don’t think my report should be parsed as if it were a statute”. “That seems to me to be too narrow a textual analysis of what I have written” is a possible response but only provided that the broader interpretation can be quickly articulated and justified. Better to hope that your party’s counsel or the judge jumps in and makes the point but the judge may save it for her judgment.

Psychiatry and psychology

The vulnerability of many psychiatric diagnoses in legal proceedings is that they are based mainly and, sometimes entirely, on self-reported symptoms and little, if at all, on observed signs. PTSD is a condition which can manifest in signs and an increased startle response and hypervigilance are examples. In this case there was evidence of a trigger causing physical symptoms of anxiety which the forensic examiner thought, and the court accepted, were genuine.

The respondent’s challenge to the appellant’s case on the grounds that neither Dr Lyall's report nor Dr Gregory's diagnosed the appellant's PTSD as "complex" or "severe" suggests a possible misunderstanding of the concept of ‘complex PTSD’. It has a similar risk of being misunderstood as ‘borderline personality disorder’. Although complex PTSD is a more complex psychopathological entity than PTSD simpliciter, it does not follow that complex PTSD is a more severe condition than PTSD. Complex does not mean severe. As, apparently, complex PTSD was not a consideration for the experts, or at least not to the extent that it was a diagnosis within the range of reasonable opinion, they probably had no need to define it. However, what it illustrates is that just as a definition of borderline personality disorder needs to make clear that the borderline is not between pathology and normality but the borderline with psychosis and other anxiety and depressive disorders, so a glossary item for complex PTSD needs to make clear that ‘complex’ refers to the complexity and not the severity of the psychopathology.   

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