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questioning psychiatric experts about occupational stress

12 June 2015

By Julian Horne, St John’s Chambers

This article aims to give some practical tips about asking written questions to psychiatric experts under CPR 35.6, in the particular context of an occupational stress claim. This is of course a different process from cross-examining a psychiatric expert at trial: written questions before trial “must be for the purpose only of clarification of the report”, unless the other party agrees or the court has given permission for a different approach: CPR 35.6(2). They must also be ‘proportionate’: CPR 35.6(1). In theory they should also be asked ‘once only’ and with specific reference to a particular report, but that rule is rarely observed – and courts are generally unconcerned about it if the point of the questions is clear and relevant.

One very common aim of written questions is to lay the groundwork for an application for permission to instruct your own expert by questioning the claimant’s psychiatrist. In many multi-track cases it may obviously be proportionate and reasonable for the defendant to have permission to instruct its own psychiatrist – and indeed the claimant may agree to that in draft directions. But recent experience suggests that this should not necessarily be taken for granted, particularly where the value of the claim does not reach six figures. At County Court Money Claims (CCMC) stage judges will generally be scrutinising the directions with an eye on the likely costs, and the parties’ budgets will often show that the involvement of an expert for the defendant has the potential significantly to increase costs, on both sides. If so, judges may be inclined to make a defendant ask questions first and instruct later – even, in smaller cases, if the claimant has agreed to the instruction in principle.

With this in mind, some general points. First, even if you simply disagree entirely with the claimant’s expert and think you have no chance of changing his or her mind, it can still be worth asking a few questions on the key issues so that you can say you have ‘jumped through the hoop’. It is easier to persuade a judge that you should have permission for your own expert if you have gone through this process, rather than simply saying you thought there was no point.

Second, try to avoid asking questions which are likely to antagonise the claimant’s expert. Even if you know a lot about occupational stress or are assisted by a desktop report from your own expert, it is rarely wise to present your questions in a tone which suggests that you know more about psychiatry than a qualified psychiatrist. Be polite, and allow the expert room to adopt a position without trying to persuade him or her that it is ridiculous or untenable. Your expert can make that point later; the claimant’s expert is not going to concede it to you at this stage.

Equally, do not try to present your entire case on the expert evidence, in a long series of questions none of which is likely to elicit agreement. Focus instead on a few key issues in the case, and try to establish that there is room for a range of views. This sort of question is a powerful tool. An expert who denies the possibility that anyone might disagree with his or her view can often look obstinate or unreasonable. But if there is a range of views on an important issue, then in order to consider that issue fairly the court might need to hear from another expert with a differing view. In practice this is probably the most effective point in support of an application by a defendant for permission for expert evidence.

Identifying some of the key issues should also help to demonstrate how central the psychiatric evidence actually is to the case, and so also increase the chance of permission being granted for another expert. And in occupational stress cases the role of psychiatric evidence will usually be of particular importance: as well as the usual issues of diagnosis, prognosis and recommendations for treatment, there are likely to be complex and potentially controversial questions of causation.

In the main this is because the diagnoses common in occupational stress cases are often multi-factorial, and a breach or possible breach of duty by the employer may well be only one of the factors involved. It is essential to differentiate between the possible causes of the claimant’s condition in terms of their significance, but this is inevitably a difficult question which will involve an expert making a fine judgment on the basis of his or her experience and clinical expertise. In a first report the claimant’s expert may well have avoided the issue altogether. You will want to ask him or her to identify the relevant factors and make the assessment; you may even want to suggest possible factors that the claimant’s expert has not addressed. Even more crucially, you will want an acknowledgement that there is room for a range of opinion.

These issues can arise even where there are no obvious factors outside the claimant’s workplace. For example the claimant’s first breakdown may often have been unforeseeable to the defendant, so that a breach of duty cannot be established in relation to that episode. But where there may be a subsequent breach of duty – perhaps because the claimant then returned to work but suffered a second breakdown which the defendant arguably should have foreseen – the court can find itself having to distinguish between the effects of occupational stress for which the defendant is not responsible, and stress for which it is.

In such cases it is also important to address what would have happened if there had been no later breach of duty. It may be that, in light of the first breakdown, the claimant would have experienced further problems even in the absence of further stress, or despite those steps which the defendant might have taken but did not. Untangling the various causes of psychiatric illness and their consequences is a difficult task at the best of times; in complicated cases involving occupational stress it is almost impossible for an expert to assert credibly that there is only one right answer to what is obviously an important question. If that can be established as the context of an application for a second expert, the application is much more likely to be successful.

You may also want to ask the claimant’s expert about their diagnosis – possibly by reference to established diagnostic criteria such as DSM-5 – but probably only if there is reason to think it may be borderline or controversial. Likewise questions about prognosis and treatment are unlikely to be of much practical assistance especially at this early stage, unless the claimant’s expert has simply not addressed those issues at all. Remember in any event that it may well be more beneficial to highlight the shortcomings of the claimant’s report in your application than to ask questions which give the expert an opportunity to address those shortcomings.

If the claimant’s expert has not identified relevant medical or personnel records, or aspects of the factual history which you think are important, it could simply be that he or she was not sent all the records or given all the evidence. But the report should identify what documents the expert has seen and set out the history that was taken from the claimant: careful questions may identify carelessness in taking the history or considering the records. And if the expert has identified things which you think are important, but has – expressly or impliedly – concluded that they are not, you may want to ask about that. But once again, the better question is probably whether another expert might take a different view. Simply pointing to a record and hoping the expert will change his or her view of its significance is unlikely to be fruitful at this stage.

Sometimes a claimant’s psychiatric expert may have expressed an opinion which bears on breach itself, particularly by suggesting that a particular episode of stress-related absence or injury was reasonably foreseeable, or should have been foreseen by the defendant. But probably the best response to this is simply to argue that it is not a decision for the expert. Foreseeability has to be judged by the standard of the reasonable employer in the position of the defendant at the time, and it is hard to see how the much greater expertise of a psychiatrist – especially one looking back with the benefit of hindsight and a full knowledge of the claimant’s medical history – is relevant to that assessment.

If the claimant’s expert has expressed this sort of view, it may well be better not to ask questions about it. You probably already have a point in your favour in any application for permission for your own expert. If the claimant’s expert has stepped well beyond the line, you might consider asking the court to strike out certain parts of his or her report, but you are unlikely to gain much by asking the expert to remove or reconsider them.

Assuming that it does obtain permission to instruct its own psychiatrist, it will rarely benefit the defendant at a later stage to put further questions to the claimant’s expert: any issues which remain can be dealt with either in the joint statement or at trial. But there may be reasons to put questions to your own expert. Commonly this will be because you want him or her to record in writing views which have been expressed informally, for example in conference, or because you require specific comment on newly disclosed documents or a report from the claimant’s expert. Even if you are confident in your expert’s ability, careful written questions may give clarity and structure to a supplementary report. Questions to your own expert shortly before the experts discuss the case may also help to lay the groundwork for the joint statement more effectively – and more subtly – than a formal agenda.

In all such cases, however, you should generally put questions to your own expert only when you already know the answers. If your questions do not follow a formal conference, it is almost always a good idea to speak to the expert by telephone and find out what the answers are likely to be. If they will not be helpful, don’t ask the questions.

In short, when considering whether to put questions to any expert you should first think carefully about why you are doing it: what are you hoping to achieve? – and what are you realistically likely to achieve? Rarely will they cause an opposing expert to modify his or her view significantly: not only are you not supposed to cross-examine with written questions, but they are not an effective form of cross-examination anyway. More often they are a means to an end, and they can serve a useful purpose particularly as a basis for the introduction of a further expert, but if they are unlikely to have any practical benefit, don’t ask them just because you have the opportunity.

Julian Horne

St John’s Chambers

Bristol

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