Estimating cost of expert reports
This post will deal with psychiatric reports, mainly for the courts. These reports often appear simple but in most cases based on experience, they involve complex and/or demanding underlying issues. This is not advice, not exhaustive and cannot cover all situations. This post is being updated on an intermittent basis.
[Updated November 2021, January 2022]
Psychiatric reports for courts, tribunals or regulatory bodies can be of two types: 1) professional witness reports 2) expert witness reports. The former does not normally provide the degree of independence or impartiality required by the courts. Expert witness (EW) reports are required by a range of standards to be robust, independent and impartial.
Experts who prepare reports for insurers would do well to ensure that their reports adhere closely to the expert witness standards. Experts operating in the UK, who prepare private reports for individuals – like in the movies – are looking for trouble.
Cost is closely linked to the nature of instructions and to the amount of evidence/materials to be analysed. Improper instructions and estimates of cost often cause big problems for courts. Expert Witnesses have duties to ensure that the receive the right instructions and range of evidence. Where EWs find that they cannot discharge their duties to the court due to these matters, they may withdraw.
I deal with the big issue first because everybody wants to dodge costs.
When a psychiatrist submits a cost estimate it would normally be for a number of hours at a certain hourly rate – plus any allowable expenses. For a psychiatric expert to submit a robust report, s/he should be aware in advance of the volume of materials and sources of information to be considered. It’s no different in principle to a builder providing a cost estimate for an extension to a house i.e. the dimensions of the project must be known in order to give a sound estimate. The materials and issues give the Expert Witness an idea of the length of interview time, and the depth of analysis that may involved in producing a report. For the avoidance of arbitrary inferences, the following mindmap is a general picture. It cannot cover individual cases. Some cases may require consideration of a range of different issues and facts. EWs will be required to disclose the sources of ascertained facts and reported facts. [Click the infographic for a larger view]
Psychiatric reports are usually demanding because:
- There are few if any ‘tests’ that a psychiatrist can administer to make determinations of diagnosis. This is unlike in ‘physical medicine‘ where an X-ray or special blood test may clench a diagnosis. Psychiatric diagnosis depends heavily on the clinical knowledge, skill and experience of the assessor in applying diagnostic criteria. Whilst rating scales may bolster diagnosis they do not determine diagnosis.
- A lot of historical information needs to be considered.
- Prognosis is also complex as it may rely on an range of bio-psychosocial variables, which often interact dynamically.
Greater complexity is expected:
- When there is are several diagnoses and especially if there are personality disorders.
- When any mental disorder presents or is associated with risk of harm to other persons.
- With inherently complex cases e.g. fitness to plead, diminished responsibility, insanity defence.
- If there are historical or real issues involving matters of law or regulation.
Many legal persons who issue instructions are of a misapprehension that ‘diagnosis’ is decided simply by interviewing the patient. This is what many psychiatrists do – but it is entirely wrong. The author knows this also from instructions or attempted instructions that ask for “a quick report”.
Some who give instructions use words like ‘mental state‘ and may instruct “We need to understand his mental state“. This is normally an inadequate instruction, because it does not clearly inform the assessor what are the issues to be evaluated in the mental state. Which mental state? The current mental state or the mental state of the time of an index incident? Conversations over the phone and the email tend have the responses such as ‘Obviously I meant the mental state the time of the index incident but if you want to give the current mental state, it’s fine‘. The author tends to withdraw from legal persons who operate like that.
An assessor can simply report on 6 aspects of mental state from an interview and not relate them to salient issues. That would be a waste of public money. Those giving instructions need to set out in pretty specific terms what are the issues along with the instructions. The issues at stake, give contexts about risk or other matters.
Thinking time is often not considered by some experts and those instructing them. The Legal Aid services fund quite a majority of psychiatric reports. They often refuse estimates because they cost too much. From direct experience, the Legal Aid services do not care if it takes the expert 10 or 20 hours to construct a report. What they care about is the final cost figure.
But Expert Witnesses in the UK are entirely obliged to the courts to ensure that they have estimated their time and costs correctly to deliver robust impartial opinions. The Expert cannot simply go, “Sorry your Honour, I ran out of time to consider that matter you’re asking about. I should have considered it but Legal Aid wouldn’t have paid enough.” Well, they could say that if they wanted a total career change – to pushing bins for example. So, it doesn’t matter what Legal Aid would fund. Sadly the effect of all this, is that many ‘cowboy’ type reports end up in the courts, and some Experts do get punished.
The author has seen very good instructions. Those normally summarise the key issues to be explored, why they are of importance to the court and precision about the what the expert is meant to address. Those instructions are normally accompanied by some evidence that has been released by the court.
Proper diagnostic processes will broadly rely on:
- Analysis of collateral history from medical records (from GP, hospitals or other clinic), social work records, and on occasions taking information into consideration from reliable friends or relatives on the index person’s functioning.
- Any pre-existing history of emotional or behavioural disturbance.
- Investigation of any physical conditions that may contribute to mental state or its breakdown.
- If relevant – any audio or video materials.
- Findings at interview.
Of the above five sets of information, interview is normally the least demanding.
However, in complex cases involving the possibility of personality disorder or antisocial conduct, time estimates on the above five points may easily double. The reason for this is because personality disorder and criminal or risk behaviour, involves additional deeper consideration of developmental history from childhood into maturity, crime records, any existing prison records.
Psychiatric assessors always need to evaluate any previous diagnoses made by others. This means that they are not at all obliged in any way to accept on confidence of another person or authority, what the diagnoses are. Accepting a previous diagnosis blindly on authority of another is a clear breach of professional and expert witness duties.
Interview time is often difficult to estimate. In complex cases of diminished responsibility it is not uncommon for interview time to total 6 hours over several sessions. Where there is the possibility of risk to several people or the public, in general interviews can be expected to be over 2 hours. Assessors need to have read a range of background information and be prepared to ask questions along certain lines. Assertions made by the subject may need to be explored or cautiously challenged. Preparation time for interviews is often not conspicuously considered. What the Legal Aid Agency will do (based on experience) is take the Expert’s estimated page count and apply a formula of some sort. That does not and cannot take into account the time taken with study.
Documentation should always never rely heavily on the assessors memory of what was said. Assessors need to be taking very careful and accurate notes – with intermittent clarification throughout the interview. In almost all prisons it is not permissible for assessors to bring in their own laptops or recording devices. That means it is down to pen and paper. The diligent assessor will normally be limited in handwriting speed to around an average maximum of 30 words per minute. Conversational speed of generation of words is not uncommonly greater than 60 words per minute. That means that assessors will need to adapt the pace of the interview to their speed of handwriting.
It is a mistake for interviewers to paraphrase much of what was said by the interviewee. Why? Paraphrasing on the fly, means making interpretations of what was said for the purpose of being succinct. The latter risks introducing unconscious biases early on. The author has frequently had the experience of prisoners/patients reading their court reports shortly after they were done, and those interviewees reacting with total surprise by saying, “I never said that! What?! What I said was….how could he get that wrong?” The author is well aware that some people tell lies. When the author had asked those interviewees, “How much time did the expert spend with you in the interview?“, the average estimate was around 60 minutes. That’s only about 1800 words of interview content or three sides of A4. From experience those sorts of reports invariably had very brief and often incompetent assessments of mental state and no true substance coming from the interviewee. The courts and lawyers won’t be expected to know the depths of what constitutes a good mental state examination.
There is hardly any point considering risk if it is not attributable to or related to some mental condition(s). Risk is considered to be a probability of an adverse outcome relative to potential impacts [Royal Society 1992]. It is very difficult to quantify risk in percentage terms in psychiatric cases because there is are no robust tests or instruments that give such estimates. There are statistical packages that can give broad estimates for subjects with A, B, C to Z issues. But the courts are not overly interested in that. The court wants to know what ‘you think’, ‘why you think it’ and how you arrived at your conclusions about risk.
Risk is to be determined by careful analysis of case histories and presentations at interviews (with the assessor and with other persons).
An assessor absolutely needs to consider all the risks and related facts, known to the decision-making body.
There are potentially big problems in risk assessments. For example the common situation is where the accused or offender about to be sentenced, has committed a single serious index incident such as a homicide or what would amount to GBH. In that situation there is probably no forensic history to analyse. It means even more meticulous consideration of the mental state at the time of the index incident and see how that may be connected (or not) to mental condition. Then the expert is obliged to consider a range of bio-psychosocial and legal issues well into the future that may be related to similar risk materialising. That sort of analysis will need to consider realistic risk-controls, and how they may work or fail.
What many want is a simple quotation for reports. This has led to huge problems because there are a certain subset of so-called psychiatric experts who will take on any case for £500 a pop – irrespective of the complexity of the case, the materials or report preparation. From direct experience those experts are usually aligned to some agency or company set up to produce reports. Experts of the latter type would massage time estimates to fit for £500 or so. In other words £500 is a one-size-fits-all sort of thing that the Legal Aid Agency, certain agencies commissioning reports and lawyers tend to like. How do I know this? In my other role outside of health service, I have seen hard evidence of it repeatedly. I also know the chaos and confusion it causes at decision-making time.
On one occasion a certain Tribunal had to call a two-day case for a consultant psychiatrist expert to address opinions in a deficient and ‘cheap’ report. I asked many of the questions of the expert on that occasion. The appellant appealed to the Upper Tribunal and in doing so complained against me. The Upper Tribunal found no fault or concern about the questions asked of the expert. It upheld the line of questioning as reasonable and appropriate.
Preparation of Expert reports is a time intensive matter. Invariably such reports need to be set out in a certain way (not just formatting), and to analyse the case in a conspicuous logical way that leads to balanced and impartial opinions.
Economic pressures to cut cost from the Legal Aid Agency ought not to determine the quality or reliability of expert reports. The standards stand separately and independently and must not be eroded. I am not saying that there should be no caps on cost of expert reports and their preparation. What I am saying is that it is wrong for economic pressures to impact negatively on the EWs duties to the court.
It’s this simple: no reasonable person would expect a builder to give a reliable quotation to build an extension to their house, based on just ‘build me an extension 20 feet by 20 feet please‘. How can a builder give a quotation and then accept instructions on specifics? Only a cowboy builder desperate for work would do something like that.
It will therefore escape me always why any reasonable person would expect an Expert Witness to:
- Accept instructions before understanding the details of a case.
- Give a quotation and then receive instructions.
- The estimate of costs for expert reports depends on time analysing a case and forming well structured logical opinions.
- It depends heavily on information from several sources.
- Interviewing the accused (or sentenced person) can be time consuming but it can also be the least time demanding part of the process.
- The Expert Witness standards stand separately and independently. They must not be eroded.
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