The Forensic The Forensic NeuropsychologicNeuropsychological Examinational Examination

ByBy

Neil BrooksNeil BrooksConsultant Neuropsychologist, Rehab Without Walls, Consultant Neuropsychologist, Rehab Without Walls,

MK8 0ES, UKMK8 0ES, UK

www.rehabwithoutwalls.co.ukwww.rehabwithoutwalls.co.uk

ContentContent Introduction and sourcesIntroduction and sources Some personal and professional Some personal and professional backgroundbackground

Special topics:Special topics: Mental capacityMental capacity EmploymentEmployment Need for therapy, care and supportNeed for therapy, care and support The neuropsychological examinationThe neuropsychological examination Symptom Validity Tests (SVT)Symptom Validity Tests (SVT)

Some suggested readingSome suggested reading Larrabee GJ (Ed); Larrabee GJ (Ed); Forensic Neuropsychology: A Forensic Neuropsychology: A Scientific ApproachScientific Approach; OUP, 2005; OUP, 2005

Lees-Haley P & Cohen LJ. “The Neuropsychologist As Lees-Haley P & Cohen LJ. “The Neuropsychologist As Expert Witness: Towards Credible Science in the Expert Witness: Towards Credible Science in the Courtroom”. Chap 15 in JJ Sweet (Ed) “Courtroom”. Chap 15 in JJ Sweet (Ed) “Forensic Forensic Neuropsychology: Fundamentals and Practice”, Neuropsychology: Fundamentals and Practice”, 443-473; 443-473; Swets & Zeitlinger, 1999Swets & Zeitlinger, 1999

Sawaya M. “Pertinent Legal Aspects”. Chapter 18 in GW Sawaya M. “Pertinent Legal Aspects”. Chapter 18 in GW Jay (Ed) “Jay (Ed) “Minor Traumatic Brain Injury Handbook”, Minor Traumatic Brain Injury Handbook”, 329-343; CRC Press, 2000329-343; CRC Press, 2000

Ziskin J; Ziskin J; Coping with Psychiatric and Psychological Coping with Psychiatric and Psychological Testimony, Volumes 1, II, & III; 5Testimony, Volumes 1, II, & III; 5thth Edition; Edition; Law and Law and Psychology Press, 1995Psychology Press, 1995

McCaffree et al; McCaffree et al; Practitioner’s Guide to Symptom Base Practitioner’s Guide to Symptom Base Rates in the General PopulationRates in the General Population; Springer, 2006; Springer, 2006

Martelli, M. F., Zasler, N. D., & Garyon, R. (1999). Martelli, M. F., Zasler, N. D., & Garyon, R. (1999). Ethical considerations in medicolegal evaluation of Ethical considerations in medicolegal evaluation of neurologic injury and impairment following acquired neurologic injury and impairment following acquired brain injury. brain injury. NeurorehabilitationNeurorehabilitation, , 1313, 45-66, 45-66

How the litigation process How the litigation process worksworks

Civil personal injury litigation is Civil personal injury litigation is adversarialadversarial..

In a claim there are two strands - In a claim there are two strands - establishing establishing liabilityliability, and estimating , and estimating quantumquantum.. The Neuropsychologist is involved in The Neuropsychologist is involved in the latter as an Expert Witness the latter as an Expert Witness

If there’s no one to sue, or if there is If there’s no one to sue, or if there is someone but they have no money, then there’s someone but they have no money, then there’s no point in litigation (unless it’s damage no point in litigation (unless it’s damage inflicted by criminal act).inflicted by criminal act).

The solicitor and barrister will prepare a The solicitor and barrister will prepare a schedule of lossesschedule of losses and and statement of claimstatement of claim..

The statement of claim may well rely in part The statement of claim may well rely in part on neuropyschological evidence.on neuropyschological evidence.

The claim may be for very substantial sums of The claim may be for very substantial sums of money. It’s money. It’s crucial that the neuropsychologist gets it right.gets it right.

BackgroundBackground I currently carry out around 100 I currently carry out around 100 forensic neuropsychological forensic neuropsychological evaluations a yearevaluations a year

Most involve TBI, with some clinical Most involve TBI, with some clinical negligence, and some psychological negligence, and some psychological traumatrauma

I am currently instructed 70% I am currently instructed 70% claimant; 25 % defendant; 5% “joint”claimant; 25 % defendant; 5% “joint”

Most cases “settle” without going to Most cases “settle” without going to court, but I write every report on court, but I write every report on the assumption that I am going to be the assumption that I am going to be thoroughly scrutinised in Courtthoroughly scrutinised in Court

What is the What is the neuropsychologist’s neuropsychologist’s

specific contribution?specific contribution? Is there any evidence of brain injury? (a Is there any evidence of brain injury? (a neuropsychological examination is neuropsychological examination is NOTNOT like an like an MRI!)MRI!)

What, if any are the cognitive, behavioural What, if any are the cognitive, behavioural and emotional consequences of the injury?and emotional consequences of the injury?

Is the current clinical picture consistent Is the current clinical picture consistent with the injury, and if not, in what way is it with the injury, and if not, in what way is it inconsistent?inconsistent?

What are the daily life consequences of the What are the daily life consequences of the current symptomatology, and can they be current symptomatology, and can they be improved?improved?

Daily life consequences?Daily life consequences?

Mental capacityMental capacity EmployabilityEmployability Need for therapy, care, or Need for therapy, care, or assistanceassistance

Mental capacityMental capacity Mental Capacity Act (2005), implemented fully Mental Capacity Act (2005), implemented fully on 1.10.07on 1.10.07

Capacity is specific, situational, and time Capacity is specific, situational, and time boundedbounded

There is no “incapacity by diagnosis”There is no “incapacity by diagnosis” The right to make stupid decisionsThe right to make stupid decisions Vulnerability is not a criterion of incapacityVulnerability is not a criterion of incapacity The starting point is the assumption of The starting point is the assumption of capacitycapacity

The two most obvious aspects of capacity for The two most obvious aspects of capacity for our purposes are capacity or ability to our purposes are capacity or ability to litigate, and to manage moneylitigate, and to manage money

Mental Capacity Act (2005)Mental Capacity Act (2005) A two stage testA two stage test If the first stage is “passed”, If the first stage is “passed”, then capacity is considered to then capacity is considered to rest on the ability to make rest on the ability to make relevant decisionsrelevant decisions

To make a decision a person must;To make a decision a person must; First, First, comprehendcomprehend the information relevant the information relevant to the decisionto the decision

Second, Second, retainretain the information for long the information for long enough to make a decisionenough to make a decision

Third, Third, use and weighuse and weigh it to make a decision it to make a decision Fourth, Fourth, communicatcommunicatee that decision that decision

These are essentially psychological, These are essentially psychological, or cognitive testsor cognitive tests

So factors such as:So factors such as:

Impaired Memory Impaired Memory Executive dysfunctionExecutive dysfunction Impaired insightImpaired insight Emotional and behavioural labilityEmotional and behavioural lability Suggestibility and impulsivitySuggestibility and impulsivity

will play a key role in impairing will play a key role in impairing capacitycapacity

Effects of damage to the Effects of damage to the frontal lobesfrontal lobes

Three broad areasThree broad areas1.1. Ability to plan problem solve, Ability to plan problem solve,

foresee the consequences of actionforesee the consequences of action

2.2. Initiation, drive, motivation, the Initiation, drive, motivation, the ability to be goal directedability to be goal directed

3.3. Social intelligence – empathy, the Social intelligence – empathy, the ability to understand that other ability to understand that other people have views opinions and people have views opinions and feelingsfeelings

The frontal lobe paradoxThe frontal lobe paradox

The frontal lobe paradoxThe frontal lobe paradox A patient may perform well on mental A patient may perform well on mental testingtesting

S/he may present well in the clinicS/he may present well in the clinic In daily life s/he may continually make In daily life s/he may continually make poor decisions, and be like a ship with poor decisions, and be like a ship with an engine, but lacking both a pilot and an engine, but lacking both a pilot and rudderrudder

Under the Mental Capacity Act, s/he may Under the Mental Capacity Act, s/he may be considered to have capacity to be considered to have capacity to manage money, or litigate, despite manage money, or litigate, despite being extremely vulnerable, impulsive, being extremely vulnerable, impulsive, and easily influencedand easily influenced

For the neuropsychologist it is crucial For the neuropsychologist it is crucial to think “outside the clinic”to think “outside the clinic”

EmployabilityEmployability

What will prevent return to work?What will prevent return to work?

1.1. Unpredictable irritabilityUnpredictable irritability

2.2. Poor social skillsPoor social skills

3.3. Inconsistency, and inability or Inconsistency, and inability or unwillingness to accept unwillingness to accept instruction and supervisioninstruction and supervision

4.4. Poor cognitive skills Poor cognitive skills

5.5. FatigueFatigue

EmployabilityEmployability Does the person have the capacity to Does the person have the capacity to work at all?work at all?

If so, is it paid employment?If so, is it paid employment? If paid employment, is it full time?If paid employment, is it full time? Is the person likely to be able to Is the person likely to be able to find and keep a job – with or without find and keep a job – with or without help?help?

If paid employment is not possible, If paid employment is not possible, would any further specialist would any further specialist rehabilitation help?rehabilitation help?

If not, is sheltered or supported If not, is sheltered or supported employment, or volunteer activity employment, or volunteer activity possible – with or without help?possible – with or without help?

Need for therapy, care and Need for therapy, care and assistanceassistance

Does the person need any help at allDoes the person need any help at all If so, If so,

how much, how much, of what type, of what type, on what schedule, on what schedule, and for how long?and for how long?

Help may include family care (paid or Help may include family care (paid or not), paid social care, nursing care, not), paid social care, nursing care, case management, and medical, case management, and medical, psychological, and therapy inputpsychological, and therapy input

What’s your evidence for this judgment?What’s your evidence for this judgment?

The Neuropsychological The Neuropsychological examinationexamination

The neuropsychologist is trying to help The neuropsychologist is trying to help the Court by advising why it is that this the Court by advising why it is that this person has this profile of problems at this person has this profile of problems at this particular timeparticular time

So, it is crucial to know about pre-injury So, it is crucial to know about pre-injury as well as current status, and the as well as current status, and the neuropsychologist should approach the neuropsychologist should approach the examination in a spirit of scepticism, and examination in a spirit of scepticism, and drawing upon, and integrating multiple drawing upon, and integrating multiple sources of informationsources of information

The neuropsychologist should:The neuropsychologist should: Beware of the post hoc propter hoc trapBeware of the post hoc propter hoc trap Be aware of the frequency of apparent Be aware of the frequency of apparent neuropsychological complaints in ordinary neuropsychological complaints in ordinary people in daily life people in daily life

Sources of informationSources of information What you read in reports, records, and What you read in reports, records, and witness statementswitness statements

What you observe in the claimantWhat you observe in the claimant What you are told spontaneously by the What you are told spontaneously by the claimant and others, particularly family claimant and others, particularly family membersmembers

What you elicit from the claimant and othersWhat you elicit from the claimant and others Formal mental status and neuropsychological Formal mental status and neuropsychological assessmentassessment

Medical records are not always accurateMedical records are not always accurate What you are looking for may be hidden in the What you are looking for may be hidden in the nursing or therapy notesnursing or therapy notes

Claimants and family members do not always tell Claimants and family members do not always tell the truththe truth

Claimants may present a false picture on Claimants may present a false picture on neuropsychological assessment – you’ll only neuropsychological assessment – you’ll only identify this if you look for itidentify this if you look for it

Components of the Neuropsychological Components of the Neuropsychological examinationexamination

An interview, taking a detailed An interview, taking a detailed history from the claimant and othershistory from the claimant and others

Scrutiny of pre-injury medical, Scrutiny of pre-injury medical, social, educational, and vocational social, educational, and vocational recordsrecords

Formal neuropsychological examination Formal neuropsychological examination (who does it?)(who does it?)

Questionnaires dealing with emotion Questionnaires dealing with emotion and behaviourand behaviour

Formal assessment (SVT) of effort or Formal assessment (SVT) of effort or symptom exaggeration using measures of symptom exaggeration using measures of high sensitivity and specificityhigh sensitivity and specificity

The interviewThe interview Clinical interview – I always use a Clinical interview – I always use a proforma, to make sure I don’t miss proforma, to make sure I don’t miss anything. I’m looking for evidence of anything. I’m looking for evidence of cognitive status, spontaneity, initiation, cognitive status, spontaneity, initiation, self-monitoring, mood, social behaviour, self-monitoring, mood, social behaviour, as well as engagement in the examinationas well as engagement in the examination

Detailed history of physical, cognitive, Detailed history of physical, cognitive, emotional, social changes since injuryemotional, social changes since injury

Report from significant other (I’m Report from significant other (I’m becoming rather sceptical about many of becoming rather sceptical about many of these)these)

Assessment of mood and behaviour using the Assessment of mood and behaviour using the HADS, QHQ, Dex, FrSBE, Questionnaire for HADS, QHQ, Dex, FrSBE, Questionnaire for Relatives (sceptical here also)Relatives (sceptical here also)

I look for evidence of PTAI look for evidence of PTA I formally assess cognitionI formally assess cognition

Neuropsychological Neuropsychological assessmentassessment

Assessment of symptom exaggeration Assessment of symptom exaggeration (SVT)(SVT)

Intellect – pre-injury and current. Intellect – pre-injury and current. Assessment of pre-injury intellect Assessment of pre-injury intellect is very difficult in childrenis very difficult in children

Mental speedMental speed MemoryMemory Executive functionExecutive function CommunicationCommunication Visuospatial and visuomotor functionVisuospatial and visuomotor function

The reportThe report Your qualificationsYour qualifications BackgroundBackground Sources of informationSources of information The accident or eventThe accident or event Clinical pictureClinical picture Neuropsychological assessmentNeuropsychological assessment Formal assessment of symptom Formal assessment of symptom exaggerationexaggeration

Questionnaire dataQuestionnaire data FormulationFormulation

What are symptom What are symptom validity tests?validity tests?

Cognitive tests (particularly memory) Cognitive tests (particularly memory) which look moderately difficult, but which look moderately difficult, but which are extremely easywhich are extremely easy

Personality tests or questionnaires Personality tests or questionnaires containing unusual or implausible containing unusual or implausible symptomssymptoms

Indices or patterns of test Indices or patterns of test performance on various testsperformance on various tests

Symptom validity testing is Symptom validity testing is critical!critical!

Some type of SVT should be used Some type of SVT should be used in clinical as well as in in clinical as well as in forensic work.forensic work.

There are all kinds of reasons, There are all kinds of reasons, some of them puzzling, why people some of them puzzling, why people provide invalid performances.provide invalid performances.

Your clinical intuition will not Your clinical intuition will not identify most of them.identify most of them.

Symptom ValiditySymptom Validity Around 50% of my forensic cases failAround 50% of my forensic cases fail I think that this means that 40-50% are I think that this means that 40-50% are actively exaggerating cognitive actively exaggerating cognitive symptomatologysymptomatology

My forensic colleagues find the same My forensic colleagues find the same figurefigure

If cognitive symptoms are being If cognitive symptoms are being exaggerated, then other symptoms exaggerated, then other symptoms probably are tooprobably are too

Symptoms considered to be sensitive Symptoms considered to be sensitive indicators of brain injury are very indicators of brain injury are very common in daily life (see McCaffrey et common in daily life (see McCaffrey et al)al)

Final ThoughtsFinal Thoughts

Be rigorous, honest, and consistent in Be rigorous, honest, and consistent in your practice.your practice.

Always assess symptom exaggeration.Always assess symptom exaggeration. Be your own toughest critic and Be your own toughest critic and anticipate cross-examination and peer-anticipate cross-examination and peer-review.review.

Be aware of your areas of expertise and Be aware of your areas of expertise and review those that are unfamiliar.review those that are unfamiliar.

Don’t stray into areas where you are not Don’t stray into areas where you are not expert – and don’t let others stray into expert – and don’t let others stray into your area of expertiseyour area of expertise

Seek and use peer supervisionSeek and use peer supervision