Care Order - proposal by the Minister that one expert to prepare all three reports.
[2012]JRC031
Before : |
J. A. Clyde-Smith, Esq., Commissioner, sitting alone. |
Between |
The Minister for Health and Social Services |
Applicant |
And |
A |
Respondent |
IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002
AND IN THE MATTER OF C
Advocate D. C. Robinson for the Minister.
Advocate M. J Haines for the Respondent.
judgment
the commissioner:
1. C was placed under an interim care order on 14th December, 2011, and the Court directed that:-
(i) An adult psychologist be instructed to undertake a psychological assessment of the mother, to include a cognitive assessment to be filed in ten weeks.
(ii) A child psychologist be instructed to prepare a psychological assessment of the child to be filed within twelve weeks, and
(iii) An Alcohol and Drugs report in relation to the mother to be made available within eight weeks.
I will refer to the assessments as reports.
2. Two issues arise for my determination, firstly whether as proposed by the mother a psychiatric report should be prepared for her in addition to the psychological reports and secondly whether as proposed by the Minister one expert can prepare all three psychological reports for the mother and the child.
3. The mother has applied for a psychiatric report to be prepared because she says she has exhibited symptoms of obsessive - compulsive disorder, anorexia and body dysmorphia, which Mr Haines on her behalf submits are characterised as psychiatric problems. The mother believes that a psychiatric assessment would be highly relevant, as it will identify that she suffers, or suffered from these conditions, the degree of the disorders, how they impacted on her directly, how they impacted on her ability to parent the child and finally how they can be managed in the best interests of the mother and the child.
4. Mr Haines had identified a psychiatrist who would be able to prepare a report in the time frames laid down by the Court in its earlier directions. The mother believes that the report is likely to have a preponderant influence on the assessment of the facts by the Court on this matter and therefore to deny her the opportunity could result in a breach of her human rights under Article 6 of the European Convention on Human Rights.
5. The Minister (through the social worker) and the Guardian oppose procuring such a report. The Guardian had interviewed the mother, who had informed her that she has no psychiatric difficulties and does not need psychiatric help. She was apparently adamant that her problems lie with psychological issues rather than psychiatric ones, but had accepted her lawyer's advice that an application for a psychiatric assessment should be made. The Guardian's understanding of disorders such as obsessive-compulsive disorder, anorexia and body dysmorphia are that they are not enduring or acute mental illnesses which need to be treated by psychiatric medication, but rather issues around core beliefs which may require a psychological approach or treatment. By way of caution the draft instruction to the proposed adult psychologist included a request that if in his or her opinion a psychiatric report was necessary, then the parties should be informed. The Guardian was concerned on behalf of the child about undertaking more assessments than are strictly needed. It did not appear to her that a psychiatric report would add anything to the Court's understanding of the child's situation that the psychologists' reports could provide at this time. She was concerned that the Court was being asked to focus too much on the mother and not on the child.
6. Mr Robinson referred me to an article by Sam Westmacott, a chartered psychologist, published in the January 2011 edition of Family Law which helps to clarify the distinction between the two professions:-
"Professionally, psychologists and psychiatrists tend to be bracketed together, perhaps because people are generally hazy about the difference between the two professions, but also because of the interchangeable manner in which we are instructed. This obscures the fact that our training, skills and thus what we offer the court is substantively different. Both professions share expertise based in a similar ground of theoretical knowledge of human development, maturation and behaviour. The critical difference is that a psychiatrist's primary training is in medicine. The psychiatrist's focus is medical diagnosis and the prescription of relevant alleviating medication or treatment. His or her attention is therefore on the observation of psycho-physiological factors and resultant behaviours in order to understand the person's functioning, reach a diagnosis for mental illness, or personality disorder, based in the agreed criteria defined in diagnostic manuals like DSM IV or ICD 10.
A psychologist is trained to define issues, assess behaviour, hypothesise and seek to change imbalances of emotion, cognition and behaviour through relevant therapy or by creating changes in contexts or environment. This distinction results in different approaches from each profession undertaking a parental assessment. A psychiatrist in a one or two hour interview seeks to establish whether observed symptoms of mental distress, such as attempted suicide or violent behaviour, are a result of physiological 'disorder' that needs to be treated with drugs.
A psychologist will take up to 6 hours in interview seeking to establish if the symptoms relate in part to cognitive functioning, or to deep, underlying emotional causes founded in past experience, or whether they are perhaps held in place by contingent environmental pressures relating to extreme events occurring in the present. The psychologist's goal is to explore the causes and underlying feelings associated with them and through appropriate therapy or by creating changes in contexts or environment help the client regain stable emotional, social and behavioural functioning."
7. In R-v-A Local Authority and Others (2011) EWCA Civ 145, the English Court of Appeal gave useful guidance on the approach to applications for expert reports. It is a matter of judicial discretion whether a report should be ordered and any application before the English courts would be considered on its merits by reference to the criteria set out in the overriding objective, the practice direction (2010 Fam-Law 189) and the Family Procedure Rules 2010, but the critical question remains this, namely, does the Court need the report in order to enable the Court to deal justly with the case?
8. Resources are a proper consideration. The overriding objectives set out in Rule 4(2)(b) of the Children Rules 2005 provide that dealing with a case justly includes, so far as is practical, "allotting to the case an appropriate share of the Court's resources, while taking into account the need to allot resources to other cases."
9. The social worker, Aisling McNiven, in her report of 27th January, 2012, points out that the mother has been seen by a psychiatrist, and had been referred for psychological therapeutic treatment. She appended a report produced for a multi-agency meeting, showing that the mother had received a psychiatric assessment by a community psychiatric nurse which found that she had full mental capacity but was suffering from anxiety. She was subsequently referred to Dr Thillai, a psychiatrist, for a further assessment, which was conducted at Orchard House. A concern had been expressed as to possible anorexia. She was discharged from Orchard House on 20th January, 2010, and Dr Hendricks, a psychiatrist, informed the meeting that she did have full mental capacity.
10. Mr Haines asks me to disregard the advice of the Guardian and the social worker, who are neither psychiatrists nor psychologists. Further, he informed me that there was friction between the mother and the grandmother, on the one hand, and the social worker on the other; with the former seeking to have the latter removed from the case. I decline to disregard their advice, notwithstanding the friction (if there is such). Both the Guardian and the social worker have considerable experience and their views on whether a psychiatric assessment is necessary are helpful.
11. In my opinion, the very recent psychiatric assessment of the mother is relevant and it reinforces my view that what the Court requires, in order to do justice to the case, are the two psychological reports, which, adopting the words of Sam Westmacott, can describe the mother's cognitive and personality functioning and how this underpins her ability in parental and child rearing roles. Such reports can provide reasons for problematic behaviour and the likelihood of change. Requiring a psychiatric report when one is not necessary would be an inappropriate use of resources.
12. Mr Haines did not expand on his assertion that failure to order a psychiatric report may breach the mother's human rights under Article 6 of the Convention. The purpose of ordering reports is to provide information that will assist the Court on the issues it has to resolve at the final hearing where the focus is on the child (whose convention rights are also at play). It is for the Court to control and therefore to limit the number of reports ordered and to decide what information it needs to deal justly with the case (see In the matter of H (a Child) [2010] JLR N 40). In my view justice is served by the ordering of two psychological reports on the mother as that should provide the Court with the information it needs to resolve the issues before it at the final hearing and accordingly the mother will have a fair hearing.
13. Mr Haines was right to bring this application in early course, but having considered the arguments I decline to order a psychiatric report.
14. The Court has directed that in effect three psychological reports be prepared; firstly, a psychological report on the mother; secondly, a cognitive report on the mother and thirdly, a psychological report on the child. Initially, the Minister proposed to appoint Dr Willemsen to prepare the child psychological report, Dr Castleton to prepare the adult psychological report and Dr Simon to prepare the cognitive report. The mother agrees to the appointment of these three experts.
15. However, the Minister has ascertained that Dr Willemsen has the clinical expertise to prepare all three reports and he is available to do so within the Court timetable. Mr Robinson informed me that there are least two other cases before the Court in which a single expert is being used in this way.
16. Mr Haines objects to the use of a single expert. Whilst there may be two cases in which a single expert is being used in this way, this is not the practice in the vast majority of cases. He submits there is a clear difference between child and adult psychology. They are different types of psychology which involve and require very different levels of skills and expertise. Also, there are separate branches of expertise in adult psychology necessitating the appointment of two adult psychologists because Dr Castleton is not qualified to undertake a cognitive assessment. It is analogous, he says, to the practice of law where there will be some common base but lawyers go on to specialise in specific areas and that we would not instruct counsel specialising in matrimonial work to give an opinion on a trust dispute, just as we should not expect a child psychologist to advise on adult psychological issues and vice versa. If generalist psychologists were able to offer the requisite level of skill, then he says we would have a long list of available psychologists offering this dual function, but he is not aware of any such list.
17. Mr Robinson referred me to Part 25 of the Family Procedure Rules 2010 in relation to experts and assessors, which has an overriding requirement that expert evidence will be restricted to that which is reasonably required to resolve the proceedings and power is given to the English court to appoint a single joint expert. In my view that overriding requirement applies just as much to this jurisdiction and it was not suggested that this Court does not have the power to order a single joint expert.
18. I must work from the assumption that Dr Willemsen does have the relevant expertise to provide all three reports required by the Court. He has confirmed that this is the case and it is supported by his CV. Assuming, therefore, that he has the expertise, then it seems to me that there are real advantages to his being instructed to provide all three reports for the following reasons:-
(i) The Court proceedings will be simplified (and therefore shortened).
(ii) In terms of resources, it is clearly preferable to have one as opposed to three experts.
(iii) It will in effect be a family assessment which will avoid the divergence of views that could arise from one expert assessing the child in isolation from another expert assessing the mother and in isolation of yet another expert who carries out the cognitive assessment on the mother.
19. In the circumstances, therefore, I order that Dr Willemsen be instructed as a single joint expert to produce all three reports.
Authorities
European Convention on Human Rights.
Family Law, January 2011 Edition.
R-v-A Local Authority and Others (2011) EWCA Civ 145.
Family Procedure Rules 2010.
Children Rules 2005.
In the matter of H (a Child) [2010] JLR N 40.