Choosing and Instructing the Mental Health Expert Witness: A Lesser Known Aspect of Trevorrow

Abstract

Apart from its significance as the first case to recognise that a member of the “stolen generation” had a cause of action against the government, Trevorrow v State of South Australia (No 5) [2007] SASC 285 is also a pertinent reminder of the extent to which a court will be assisted by an expert, especially when the expert is providing evidence that, whilst within their general training in psychiatry or psychology, is nonetheless outside the expert's clinical or academic experience. The situation becomes worse when experts are inadequately instructed. This article will consider the responsibilities of lawyers when choosing and instructing mental health experts. It will be argued that if the civil jurisdiction rules of court in relation to expert witnesses are followed, then there should be no real need on most occasions to call mental health experts to give oral testimony, except where a pre-trial conference does not lead to the resolution of differences of opinion between the experts.

Key words:

• adequate instructions to expert
• expert evidence
• qualifications of mental health experts
• stolen generation

Acknowledgement

I would like to thank Dr Ken O'Brien for his helpful comments on an earlier draft of this article.

Notes

1. [2007] SASC 285 (1 August 2007).

2. P Debelle and J Chandler, ‘Stolen generation payout’ The Age (Melbourne 2 August 2007).

3. Cubillo v The Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1.

4. Government of South Australia, Press Release, 28 February 2008 < www. premier.sa.gov.au/news> accessed 17 September 2008.

5. See for example the South Australian Psychiatry Training Handbook 2008, SAPTC, January 2008.

6. Supreme Court of South Australia, Civil Rules 2006: in effect from 4 September 2006.

7. See I Freckelton and H Selby, Expert Evidence: Law, Practice, Procedure and Advocacy (4th edn Thomson, Sydney 2009); JA Dvoskin and LS Guy, ‘On Being an Expert Witness: It's not about you’ (2008) 15(2) Psychiatry, Psychology and Law 202; PC Gaughwin, ‘Re Savonarola at the Stake: The Rise and Fall of Roy Meadow’ (2008) 16 Australasian Psychiatry 373; R Kaplan, ‘Savonarola at the Stake: The Rise and Fall of Roy Meadow’ (2008) 16 Australasian Psychiatry 213; PC Gaughwin, ‘A Consideration of the Relationship Between the Rules of Court and the Code of Ethics in Forensic Psychiatry’ (2004) 38 Australian and New Zealand Journal of Psychiatry 20; PC Gaughwin, ‘Ethics, Duty of Care and Forensic Psychiatry: a Legal Perspective’ (1998) 32 Australian and New Zealand Journal of Psychiatry 722; SH Allnutt and D Chaplow, ‘General Principles of Forensic Report Writing’ (2000) 34 Australian and New Zealand Journal of Psychiatry 980. The Australian Law Reform Commission, Experts: Adversarial Background Paper 6 (1999) < www.austlii.edu.au/au/other/alrc/publications/bp/6/experts.htlm> accessed 22 February 2002; Royal Australian and New Zealand College of Psychiatrists, Ethical Guidelines for Independent Medical Examination and Report Preparation by Psychiatrists (Royal Australian and New Zealand College of Psychiatrists, Melbourne 2003) Ethical Guideline No 9; PC Gaughwin, ‘On Being Insane in Medico-Legal Places: The Importance of Taking a Complete History in Forensic Mental Health Assessment’ (2005) 12 Psychiatry, Psychology and Law 298; J Ewing et al., ‘The Mental Health Expert in Personal Injury and Workers Compensation Litigation (1993–1997)’ in I Freckelton and H Selby (eds), Expert Evidence: Law, Practice, Procedure and Advocacy 6 volume looseleaf service (Law Book Co, 1993–), vol 3, ch 6. J White and KP O'Brien, ‘Psychologists and Psychiatrists … Knowing the Difference’ (15–16 September 1994) Law Society (SA) Bulletin.

8. TL Victor and N Abeles, ‘Coaching Clients to Take Psychological and Neuropsychological Tests: A Clash of Ethical Obligations’ (2004) 34 Professional Psychology: Research and Practice 373; New South Wales Parliament, ‘Joint Select Committee on Victims Compensation Report: Inquiry into Psychological Injury – Shock’ (December 1998) New South Wales.

9. B Lander, ‘Experts’ Responsibilities and the Rules and Practice Direction' Preparing Expert Witnesses Seminar, 27 August 2002, Law Society of South Australia.

10. Supreme Court of South Australia, Practice Direction 5.4—Expert Witnesses (Rule 160): in effect from 4 September 2006.

11. See n 7 and n 10.

12. See n 7.

13. J Bowlby, Attachment and Loss, 3 volumes (Basic Books, New York 1969–80).

14. JM Rey, P Hazell, G Patton and B Tonge, ‘Child and Adolescent Psychiatry’ in S Bloch and BS Singh (eds) Foundations of Clinical Psychiatry (2nd edn Melbourne University Press, Melbourne 2001).

15. Australian Psychological Society < www. psychology.org.au> accessed 24 September 2008.

16. See n 15 and n 10.

17. See n 7 and n 8.

18. See n 7.

19. Ibid.

20. See n 7 and n 8.

21. See n 7.

22. See n 7.

23. See n 4.