Transcript 9-neil-brooks.pps

The Forensic
Neuropsychological
Examination
By
Neil Brooks
Consultant Neuropsychologist, Rehab Without Walls, MK8 0ES, UK
www.rehabwithoutwalls.co.uk
Content
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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)
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Some suggested reading
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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
How the litigation process works
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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
losses and 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.
Background
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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
What is the neuropsychologist’s
specific contribution?
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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?
Daily life consequences?
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Mental capacity
Employability
Need for therapy, care, or assistance
Mental capacity
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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
Mental Capacity Act (2005)
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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;
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First, comprehend the information relevant to the decision
Second, retain the information for long enough to make a
decision
Third, use and weigh it to make a decision
Fourth, communicate that decision
These are essentially psychological, or cognitive tests
So factors such as:
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Impaired Memory
Executive dysfunction
Impaired insight
Emotional and behavioural lability
Suggestibility and impulsivity
will play a key role in impairing capacity
Effects of damage to the frontal lobes
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Three broad areas
Ability to plan problem solve, foresee the
consequences of action
2. Initiation, drive, motivation, the ability to be goal
directed
3. Social intelligence – empathy, the ability to
understand that other people have views opinions
and feelings
The frontal lobe paradox
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The frontal lobe paradox
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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”
Employability
What will prevent return to work?
1. Unpredictable irritability
2. Poor social skills
3. Inconsistency, and inability or unwillingness to
accept instruction and supervision
4. Poor cognitive skills
5. Fatigue
Employability
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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?
Need for therapy, care and assistance
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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?
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The Neuropsychological examination
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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:
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Beware of the post hoc propter hoc trap
Be aware of the frequency of apparent neuropsychological
complaints in ordinary people in daily life
Sources of information
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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
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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
Components of the Neuropsychological examination
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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
The interview
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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, selfmonitoring, 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
Neuropsychological assessment
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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
The report
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Your qualifications
Background
Sources of information
The accident or event
Clinical picture
Neuropsychological assessment
Formal assessment of symptom exaggeration
Questionnaire data
Formulation
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
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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.
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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)
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Final Thoughts
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Be rigorous, honest, and consistent in your practice.
Always assess symptom exaggeration.
Be your own toughest critic and anticipate crossexamination 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