Doctor defends expert witness role

A senior psychiatrist is defending the specialty after suggestions by police and victims groups that they are giving convicted criminals bogus diagnoses to secure lighter sentences.

Earlier this month, Victoria's victims of crime commissioner, Greg Davies, criticised some psychiatrists working as expert witnesses for using diagnoses such as narcissistic personality disorder.

“It does seem extremely convenient when we have people being diagnosed with these conditions immediately after they've been charged with an offence.

“If someone is going to claim that psychological complaint was somehow responsible for their behaviour, then I think it's reasonable to expect them to provide a history of treatment to demonstrate they suffer from a legitimate condition,” Mr Davies said.

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Senior Victorian police are also said to be frustrated with personality disorders being used as a mitigating factor by defendants charged with fraud and other financial crimes.

But a psychiatrist with 40 years' experience as an expert witness said the claims were largely unfounded.

“Psychiatry is not a subjective discipline and nor is psychology," Associate Professor Jonathan Phillips, from the University of NSW's school of psychiatry, told Australian Doctor.

"There is probably no more rigorous diagnostic system in the whole of medicine than the DSM.

“One can only assume there has been concern from time to time that the expert was being used as a gun for hire and accepted that role.”

Professor Phillips (pictured) said GPs and other medical professionals were not judged in the same light as psychiatrists when providing expert testimony.

“It’s unlikely for example that there’s an orthopaedic surgeon acting as an expert who would believe that a damaged knee is an excuse for a crime,” he said.

“Inevitably there is an emphasis on psychological matters in the courts rather than matters of physical medicine. Therefore psychiatrists and psychologists become easy targets for comment.”

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A former president of the Royal Australian and New Zealand College of Psychiatrists, Professor Phillips said it would be unwise for mental health professionals to claim a person’s criminal activities were largely motivated by a sense of narcissism.

“Psychiatrists are encouraged to consider these matters and it is reasonable to canvas these matters if appropriate within a medico-legal report,” he said.

“But it’s for the court to give weight to what an expert says. I believe that on most occasions a person with a personality disorder should not be excused from a crime.”

Sydney GP Dr Greg Cameron, who has acted as an expert witness in court cases, said it was likely, however, that psychologists and psychiatrists had come in for criticism as their opinions could be construed as more subjective when compared with the opinions of experts in other medical fields.

“It could be argued there is not so much of a hard-evidence basis. With psychiatry and psychology, it can be a little bit more subjective.

“You do have to be impartial but also realistic. None of us are perfect, but I think you need to be realistic when writing expert reports,” Dr Cameron said.

Having provided testimony in criminal and civil trials as an expert witness for 40 years, Associate Professor Phillips speaks to Australian Doctor about why psychiatrists make easy targets for criticism.

Australian Doctor: Why have some psychiatrists and psychologists been criticised by police?

Professor Phillips: One can only assume that there has been concern from time to time that the expert was being used as a gun for hire and accepted that role.

Psychiatry is not a subjective discipline and nor is psychology. There is probably no more rigorous diagnostic system in the whole of medicine than the DSM. I don’t think it could be said that diagnosis in psychiatry is a loose matter.

Let me give a view on this. It’s unlikely for example that there’s an orthopaedic surgeon acting as an expert who would believe that a damaged knee is an excuse for a crime. Inevitably there is an emphasis on psychological matters in the courts rather than matters of physical medicine. Therefore psychiatrists and psychologists become easy targets for comment.

Australian Doctor: Should narcissistic personality disorder be used as a mitigating reason for a criminal offence?

Professor Phillips: Narcissistic personality disorder is not an excuse for crime, full stop. The DSM allows psychiatrists to make a primary psychiatric diagnosis such as schizophrenia, a major depressive disorder and others. But it also encourages psychiatrists to consider the issue of personality disorders or the less intense variant of that which I would call personality trait disturbances.

Psychiatrists are encouraged to consider these matters and it is reasonable to canvas these matters if appropriate within a medico-legal report. But it’s for the court to give weight to what an expert says. I believe that on most occasions a person with a personality disorder should not be excused from a crime.

Australian Doctor: Are there concerns about ‘guns for hire’ in the profession?

Professor Phillips: It’s hearsay but I do suspect that some professionals should not be offering medico-legal advice because they see it as a way of making a special income or a name for themselves.  That is completely contrary to the ethics of the profession.

I think you need to be mindful first and always that you are reporting for the court, you are to report objectively and in no way are you an agent of the solicitor who has instructed you. Any medico-legal expert who strays from that position will have a short life in the field.

Australian Doctor: Are there many cases psychiatrists would attend to as expert witnesses?

Professor Phillips: Personal injury is very much to the fore. Matters like police and other first responders suffering trauma which can lead to anxiety, depression, post-traumatic stress disorder and so on.  

Currently, a great deal of time and effort by psychiatrists and psychologists is in the evaluation of damages caused by the sexual abuse of children in schools, homes and elsewhere.

I have been involved in many matters concerning medical negligence. Disputed wills and matters of testamentary capacity pops up often. There’s other larger issues too that may relate to public mayhem such as acts of terrorism where expert opinion is needed.

Professor Phillips is on the expert panel of Experts Direct.