by Crystal Duvenhage
The Court and the law is an area in which many Psychologists feel uncomfortable and vulnerable. This, however, does not have to be so if we understand what our role is and what is expected of us.
This really is a clear-cut environment with nothing vague, mysterious, or even mystical. The law and the Courtroom are clearly defined, practical, with clear boundaries, and with less uncertainties or grey areas than Psychologists may be used to in their daily practice.
As Advocate, R. Sutherland noted in his article “Expert evidence- the role, duties, and responsibilities of the expert witness in litigation“, a person who takes on the role of an expert witness has a different function.
The job of the expert witness is not simply to articulate their client’s position; it is to assist the decision maker (a court, tribunal or other similar body) with the information about the specialist area which is necessary before a decision can be made.
This role is also more easily clarified when one ensures that you follow the HPCSA’s Rules of conduct (Third-party requests for services):
- When a Psychologist agrees to provide a psychological service to a client at the request of a third party, such psychologist shall clarify at the onset of such service, the nature of the relationship with each party (whether individual or organizations)
- The clarification referred to in sub-rule (1) includes the role of the psychologist (such as therapist, consultant, diagnostician, expert witness), the probable uses of the psychological service provided r the information obtained, and the fact that there may be limits to confidentiality.
- If there is a foreseeable risk of the psychologists being called upon to perform conflicting roles because of the involvement of, a third party, such psychologist shall clarify the nature and direction of his or her responsibilities, keep all parties appropriately informed as matters develop and resolve the situation in accordance with these rules.
- Be responsible (Do not enter the field if you are not proficient to provide what is required)
- Be ethical (Choose accredited material and assessment tools)
- Be unbiased and truthful (your findings do not depend on who is paying the fees)
- Use understandable language
- Be clear and concise
- Expert evidence presented to the court should be, and should be seen to be, the independed product of the expert uninfluenced by the exigencies of litigation
- An expert witness should provide indiependednt assistance to the court by the way of objective and unbiased opinion to matters with this expertise (Under Civil Procedure Rules, it is an express requirement that the expert’s duty to the court over-rides any obligation to the person from whom he has received his instructions or by whom he is paid)
- An expert witness should state the fact or assumptions on which his opinions is based
- An expert witness should not omit to consider material facts which could detract from his concluded pinion
- An expert should make it clear when a particular question or issue falls outside of his expertise
- If an expert’s opinion is not properly researched becuae he considers that insufiicient data are available this this must be stated
- If, after exchange of reports, an expert changes his/her view on a material matter, having read the other side’s expert reports or for any other reason, such change of view should be communicated to the other side without delay, and when apprpriate to court.
These environments need not be as scary or as intimidating if we recognise the value and professionalism that we as a profession bring to this contact.