Written evidence from the Consortium of Expert Witnesses to the Family Courts

 

Executive Summary:

 

 

Who we are:

I write on behalf of the nearly 600 members of the Consortium of Expert Witnesses to the Family Courts. We include

 

 

As many of our members also prepare expert clinician reports for the criminal and civil courts, I am including information with respect to legal aid in those settings, where relevant.

 

Expert clinicians play a key role in cases before the Family Courts, as well as criminal and civil courts, but our ability to work properly is not always considered. We appreciate this opportunity to join the Justice Committee’s deliberations. 

 

 

Our response to your questions:

 

How LASPO has impacted access to justice and for views on the post-implementation review and the criminal legal aid review

 

LASPO came into effect over seven years ago. Since then, many highly experienced Family Court experts have withdrawn from legal aid work, leaving gaps in provision in general and specifically in specialised areas of work. (I will say more this below.)

 

Diminution in the number of expert clinicians available:

It follows that families sometimes are left without sufficiently experienced expert clinician advice and/or experience long waits for expert availability.

 

In addition, we often are asked to submit work proposals for assessments that the Court does not agree to order. It concerns us that parents and children, who we are told have significant mental health problems, then are represented to the Court solely by social workers, who are pushed to comment on mental health issues that are beyond their area of expertise. 

 

Impact on expert reports of pressures on other legal professionals and the Courts:

Obviously, all professionals who are paid by legal aid have been subject to cuts, and we notice that this has an impact on the solicitors who instruct us, as we often receive delayed and lengthy or repetitive letters of instruction and incomplete bundles, which causes delay in proceedings. We find that whereas in the past, the Court was prepared to instruct expert clinicians in more than one area of specialism, when required, this now happens much less frequently, and a single expert will be asked to provide evidence that sometimes goes beyond their area of specialism.

 

Critical difficulties in private law proceedings:

We are particularly concerned about the impact on children that has resulted from the withdrawal of legal aid funding for many private law disputes. These children are deeply affected by the ongoing uncertainty and volatility in their family life. Preparing reports on these families is time-consuming, especially because of the difficulty for us in dealing with parents who are litigants in person. We are not reimbursed for the work needed to prepare multiple letters, emails, and phone calls that working with such parents can entail, and some expert clinicians have had to withdraw from these cases, as they cannot afford to work as a result.

 

 

Criminal Legal Aid Rates:

The Legal Aid Agency set the rates of reimbursement for experts instructed by criminal courts at a lower rate for clinicians who are based in London than for clinicians who are based elsewhere. The rationale for this was never sensible; for example, this resulted in a clinician outside of London being able to visit a London prison and charge a higher rate than a clinician who was based in London. We believe that this inequality has resulted in a significant drop in the number of experts willing to work for the criminal courts.

 

 

The role of the Legal Aid Agency

 

Expert clinicians do not have direct contact with the Legal Aid Agency, but we often are at the mercy of their decisions. Much of the difficulty stems from the arbitrary setting of guidelines for the time required for assessments. When the Legal Aid Agency instituted these guidelines seven years ago, they said that they would be open to consideration for individual cases. In our experience, they are anything but open and pay little if any attention to the needs of individual cases. Their decisions appear to be based on insufficient knowledge about our professional specialisms and about the requirements for our assessments. We have offered in the past, and we offer again now, to help train Legal Aid Agency staff, so that they have better knowledge of the work that is required for expert assessments.

 

Delays due to seeking prior authority:

Expert clinicians often indicate in their initial fee estimate that the work required will exceed the arbitrary guidelines. At other times, expert clinicians, upon receipt of instructions and Court bundles will inform instructing solicitors that the work required will take more time than they were initially told by the assistant, often minimally informed, who contacted them for a fee estimate. At still other times, medical records arrive late, and their volume exceeds what we have estimated, without any way of knowing in advance what the size might be.

 

In all these circumstances, we have to donate increasing time to explaining why we need more funding for our work. The parties then have to request prior authority. This inevitably causes delay, which is not in the interests of the families and can exceed the Court’s timetable. We are pressured to prepare reports in insufficient time as a result.

 

Sometimes, the result is that the Local Authority picks up the additional cost, which seems to us an unfair use of resources, which we are well aware need to be devoted to families in need.

 

Fixed hourly rates:

The Legal Aid Agency set hourly rates well below the rates that experienced clinicians were charging in 2013. This resulted in many experts leaving legally aided work. It continues to have a negative effect. As experts become more experienced and are asked to assess in highly complex and unusual cases, in any other area of professional work, they would charge a higher rate. There is no provision for this in legal aid. This results in experts feeling that they have no choice but to leave this work, taking with them the experience that they have built up over many years.  

 

 

Billing problems:

Although we have no direct contact with the Legal Aid Agency, our bills often are challenged through the solicitors in ways that are ridiculous, insulting, and require a great deal of time to defend.

 

We have argued in the past that the practice of our having to bill each party separately is not time-efficient and can lead to rogue solicitors taking years to pay us. However, the Legal Aid Agency has refused to consider this.

 

 

Recruitment and retention problems among legal aid professionals

 

Since 2013, many expert clinicians have withdrawn from legally aided work. This has resulted in inadequate availability in some specialist areas, such as neuropsychiatry for Family and Criminal Courts. There also is a dearth of highly experienced psychiatrists and psychologists who can prepare assessments of large, complex families who increasingly appear before the Family Courts.

 

The loss of expert psycho-analysts further adds to the deficits. Before LASPO, psycho-analysts brought to the Courts their insightful perspective, particularly in the areas of parental personality difficulties and child development. After LASPO, many psycho-analysts were downgraded in their fee schedule, some to the rate of social workers, and they withdrew from Court work, taking their vast expertise with them.

 

Clinicians in these areas can secure far higher rates of pay for civil work or private practice that is less pressured and usually does not result in challenges about rates of pay and time required.

 

For experts who continue to work for the Family Courts and accept legal aid payment, the challenges have become increasingly difficult, as bundle sizes have increased markedly, reconstituted families have multiple members who must be included in an assessment, and the level of acrimony in many contested hearings has become greater. Pressures on expert clinicians to maintain our practices, keep up with rising malpractice insure dues and the necessary costs of licensing and revalidation also have much increased since 2013.

 

And yet, there has not been a rise in our hourly rates since then. Judges, barristers, and MP’s have had pay rises, but not expert witnesses. Measures of inflation and the cost of living show an increase of 15 to 18% from 2013 to 2020.[i]

 

If the Family Courts are to maintain the availability of expert clinicians, there needs to be a pay rise in keeping with the increase of our costs due to inflation, and the Legal Aid Agency need to institute a regular review process to keep pace with inflation.

 

The experienced expert clinicians who continue to do this work at present, say that they do it from a sense of moral duty. The Government cannot rely on that continuing to be the basis for provision of the necessary expert input that is required for the Family Courts in the years to come.

 

Professor Michael Kopelman wrote about this critical situation, saying, “I fully support a campaign to get all medical and psychologist experts properly remunerated, and I worry greatly about the quality of expertise given to the Courts, now and in the future, if this does not happen.” Michael Kopelman, PhD, FBPsS, FRCPsych, FMedSci,, Emeritus Professor of Neuropsychiatry, King’s College London, IoPPN, formerly based at St Thomas’s Hospital.” Professor Kopelman’s work is in the Criminal and Civil Courts, but what he says applies equally to the Family Courts.

 

 

The impact of the court reform programme and the increasing use of technology on legal aid services and clients

 

The impact of Covid-19 on legal aid services and clients

 

Electronic bundles are a welcome improvement to most experts.

 

Covid-19 has resulted in most experts clinicians changing their method of work from face-to-face to video-based. Opinions about the usefulness of this differ; some clinicians find that there are benefits, others do not.

 

Psychologists particularly have struggled with the administration of testing; they have tried to make adaptations, but some psychologists feel that they cannot adequately assess in these circumstances.

 

Expert clinicians are particularly worried about what we hear from parents of young babies, who have been left with inappropriate video contact, when their young children are removed from their care. There may not be an alternative at times of lockdown, but this is leaving a legacy of interrupted bonding between parents and young babies. If these babies return to the care of their parents, they will need extra support, and we encourage the Courts to advocate for funds to be provided for this additional critical need.

 

We also are worried about vulnerable parents we meet who are left to join Court hearings by video link or even just by telephone. Many of these parents are unsupported, and it takes a toll on their mental health, as well as their ability to conduct their case justly.

 

 

What the challenges are for legal aid over the next decade, what reforms are needed and what can be learnt from elsewhere

 

In summary, from what I have described above, legal aid reforms over the next decade will need to include:

 

November 2020

 

Dr Judith Freedman, M.D., FRCPsych.

Convenor,

Consortium of Expert Witnesses to the Family Courts

 

 

 

 

 

 

 


[i] See https://niceareas.co.uk/inflation-calculator/what-is-10.00-in-apr-2013-worth-in-oct-2020-in-pounds/