The Forensic Neuropsychological Examination

1. The Forensic Neuropsychological Examination By Neil Brooks Consultant Neuropsychologist, Rehab Without Walls, MK8 0ES, UK www.rehabwithoutwalls.co.uk

2. Content • Introduction and sources • Some personal and professional background • Special topics: • Mental capacity • Employment • Need for therapy, care and support • The neuropsychological examination • Symptom Validity Tests (SVT)

3. Some suggested reading • Larrabee GJ (Ed); Forensic Neuropsychology: A Scientific Approach; OUP, 2005 • Lees-Haley P & Cohen LJ. “The Neuropsychologist As Expert Witness: Towards Credible Science in the Courtroom”. Chap 15 in JJ Sweet (Ed) “Forensic Neuropsychology: Fundamentals and Practice”, 443-473; Swets & Zeitlinger, 1999 • Sawaya M. “Pertinent Legal Aspects”. Chapter 18 in GW Jay (Ed) “Minor Traumatic Brain Injury Handbook”, 329-343; CRC Press, 2000 • Ziskin J; Coping with Psychiatric and Psychological Testimony, Volumes 1, II, & III; 5th Edition; Law and Psychology Press, 1995 • McCaffree et al; Practitioner’s Guide to Symptom Base Rates in the General Population; Springer, 2006 • Martelli, M. F., Zasler, N. D., & Garyon, R. (1999). Ethical considerations in medicolegal evaluation of neurologic injury and impairment following acquired brain injury. Neurorehabilitation, 13, 45-66

4. How the litigation process works • Civil personal injury litigation is adversarial. • In a claim there are two strands - establishing liability, and estimating quantum. The Neuropsychologist is involved in the latter as an Expert Witness • If there’s no one to sue, or if there is someone but they have no money, then there’s no point in litigation (unless it’s damage inflicted by criminal act). • The solicitor and barrister will prepare a schedule of lossesand statement of claim. • The statement of claim may well rely in part on neuropyschological evidence. • The claim may be for very substantial sums of money. It’s crucial that the neuropsychologist gets it right.

5. Background • I currently carry out around 100 forensic neuropsychological evaluations a year • Most involve TBI, with some clinical negligence, and some psychological trauma • I am currently instructed 70% claimant; 25 % defendant; 5% “joint” • Most cases “settle” without going to court, but I write every report on the assumption that I am going to be thoroughly scrutinised in Court

6. What is the neuropsychologist’s specific contribution? • Is there any evidence of brain injury? (a neuropsychological examination is NOT like an MRI!) • What, if any are the cognitive, behavioural and emotional consequences of the injury? • Is the current clinical picture consistent with the injury, and if not, in what way is it inconsistent? • What are the daily life consequences of the current symptomatology, and can they be improved?

7. Daily life consequences? • Mental capacity • Employability • Need for therapy, care, or assistance

8. Mental capacity • Mental Capacity Act (2005), implemented fully on 1.10.07 • Capacity is specific, situational, and time bounded • There is no “incapacity by diagnosis” • The right to make stupid decisions • Vulnerability is not a criterion of incapacity • The starting point is the assumption of capacity • The two most obvious aspects of capacity for our purposes are capacity or ability to litigate, and to manage money

9. Mental Capacity Act (2005) • A two stage test • If the first stage is “passed”, then capacity is considered to rest on the ability to make relevant decisions • To make a decision a person must; • First, comprehend the information relevant to the decision • Second, retainthe information for long enough to make a decision • Third, use and weigh it to make a decision • Fourth, communicate that decision

10. These are essentially psychological, or cognitive tests So factors such as: • Impaired Memory • Executive dysfunction • Impaired insight • Emotional and behavioural lability • Suggestibility and impulsivity will play a key role in impairing capacity

11. Effects of damage to the frontal lobes • Three broad areas • Ability to plan problem solve, foresee the consequences of action • Initiation, drive, motivation, the ability to be goal directed • Social intelligence – empathy, the ability to understand that other people have views opinions and feelings • The frontal lobe paradox

12. The frontal lobe paradox • A patient may perform well on mental testing • S/he may present well in the clinic • In daily life s/he may continually make poor decisions, and be like a ship with an engine, but lacking both a pilot and rudder • Under the Mental Capacity Act, s/he may be considered to have capacity to manage money, or litigate, despite being extremely vulnerable, impulsive, and easily influenced • For the neuropsychologist it is crucial to think “outside the clinic”

13. Employability What will prevent return to work? • Unpredictable irritability • Poor social skills • Inconsistency, and inability or unwillingness to accept instruction and supervision • Poor cognitive skills • Fatigue

14. Employability • Does the person have the capacity to work at all? • If so, is it paid employment? • If paid employment, is it full time? • Is the person likely to be able to find and keep a job – with or without help? • If paid employment is not possible, would any further specialist rehabilitation help? • If not, is sheltered or supported employment, or volunteer activity possible – with or without help?

15. Need for therapy, care and assistance • Does the person need any help at all • If so, • how much, • of what type, • on what schedule, • and for how long? • Help may include family care (paid or not), paid social care, nursing care, case management, and medical, psychological, and therapy input • What’s your evidence for this judgment?

16. The Neuropsychological examination • The neuropsychologist is trying to help the Court by advising why it is that this person has this profile of problems at this particular time • So, it is crucial to know about pre-injury as well as current status, and the neuropsychologist should approach the examination in a spirit of scepticism, and drawing upon, and integrating multiple sources of information • The neuropsychologist should: • Beware of the post hoc propter hoc trap • Be aware of the frequency of apparent neuropsychological complaints in ordinary people in daily life

17. Sources of information • What you read in reports, records, and witness statements • What you observe in the claimant • What you are told spontaneously by the claimant and others, particularly family members • What you elicit from the claimant and others • Formal mental status and neuropsychological assessment • Medical records are not always accurate • What you are looking for may be hidden in the nursing or therapy notes • Claimants and family members do not always tell the truth • Claimants may present a false picture on neuropsychological assessment – you’ll only identify this if you look for it

18. Components of the Neuropsychological examination • An interview, taking a detailed history from the claimant and others • Scrutiny of pre-injury medical, social, educational, and vocational records • Formal neuropsychological examination (who does it?) • Questionnaires dealing with emotion and behaviour • Formal assessment (SVT) of effort or symptom exaggeration using measures of high sensitivity and specificity

19. The interview • Clinical interview – I always use a proforma, to make sure I don’t miss anything. I’m looking for evidence of cognitive status, spontaneity, initiation, self-monitoring, mood, social behaviour, as well as engagement in the examination • Detailed history of physical, cognitive, emotional, social changes since injury • Report from significant other (I’m becoming rather sceptical about many of these) • Assessment of mood and behaviour using the HADS, QHQ, Dex, FrSBE, Questionnaire for Relatives (sceptical here also) • I look for evidence of PTA • I formally assess cognition

20. Neuropsychological assessment • Assessment of symptom exaggeration (SVT) • Intellect – pre-injury and current. Assessment of pre-injury intellect is very difficult in children • Mental speed • Memory • Executive function • Communication • Visuospatial and visuomotor function

21. The report • Your qualifications • Background • Sources of information • The accident or event • Clinical picture • Neuropsychological assessment • Formal assessment of symptom exaggeration • Questionnaire data • Formulation

22. What are symptom validity tests? • Cognitive tests (particularly memory) which look moderately difficult, but which are extremely easy • Personality tests or questionnaires containing unusual or implausible symptoms • Indices or patterns of test performance on various tests

23. Symptom validity testing is critical! • Some type of SVT should be used in clinical as well as in forensic work. • There are all kinds of reasons, some of them puzzling, why people provide invalid performances. • Your clinical intuition will not identify most of them.

24. Symptom Validity • Around 50% of my forensic cases fail • I think that this means that 40-50% are actively exaggerating cognitive symptomatology • My forensic colleagues find the same figure • If cognitive symptoms are being exaggerated, then other symptoms probably are too • Symptoms considered to be sensitive indicators of brain injury are very common in daily life (see McCaffrey et al)

25. Final Thoughts • Be rigorous, honest, and consistent in your practice. • Always assess symptom exaggeration. • Be your own toughest critic and anticipate cross-examination and peer-review. • Be aware of your areas of expertise and review those that are unfamiliar. • Don’t stray into areas where you are not expert – and don’t let others stray into your area of expertise • Seek and use peer supervision