Family judges who appoint unregulated psychologists as expert witnesses in the courts should issue a judgment to explain their decision, according to updated guidance designed to protect the public from inadequately trained professionals.
Crucially, additions to existing joint guidance from the Family Justice Council and the British Psychological Society (BPS) also set out the distinction between a psychologist who is registered with the regulator, the Health and Care Professions Council (HCPC), and an academic psychologist who would not have the same clinical competencies.
Consultant clinical psychologist Dr Jaime Craig, lead author of the publication, said: “We have tightened the existing guidance to make clear the difference between those psychologists who are qualified practitioners and those who are essentially researchers and academics.”
Only those psychologists regulated with the HCPC have the relevant clinical experience to conduct psychological assessments, make diagnoses and recommend treatment, the guidance makes clear. Academic psychologists should have chartered membership with the BPS.
Craig said: “Were you to see a psychologist in the NHS you would only see a practitioner and not a researcher. There are lots of psychologists who do very interesting research but they are not qualified to make assessments and diagnoses – or deliver treatment.”
There is a latitude in the family courts for psychological evidence that doesn’t exist for medical evidence, and that is problematic, Craig told the Observer.
“We would expect medical experts to be registered with the General Medical Council and there is no grey area where a judge can circumvent that.
“However, when it comes to psychological evidence, there is a loophole which means the courts can facilitate the assessment of children by insufficiently qualified people that the NHS would not allow.”
He added: “The driver behind the judge having to justify why they are choosing someone who is not HCPC registered is to force them to interrogate their qualifications. The guidance is designed to protect the public from those who are not duly competent.”
The updated guidance follows a landmark judgment earlier this year in which England’s most senior family court judge described a “confusing system” in which the generic label “psychologist” is not protected and can be used by anyone.
In the judgment known as “Re C” Sir Andrew McFarlane laid out reasons for rejecting the appeal of a mother who was seeking a re-hearing of her case after complaining the jointly instructed “parental alienation” expert who assessed her family was neither regulated nor appropriately qualified.
McFarlane made no criticisms of the expert but he did address the wider debate that has been building in recent years about the instruction of non-regulated psychologists.
He advised there was “need for rigour” and “clarity” when instructing expert psychologists but said it was a matter for the psychological profession – and ultimately parliament – whether a “tighter regime should be imposed”.
MPs have called for an inquiry into the use of experts in the family courts but government ministers have responded by saying it is up to the judiciary to reject experts they do not believe to be appropriately qualified.
Dr Adrienne Barnett, a non-practising barrister and reader of law at Brunel University, said: “Psychological experts can be instructed to provide assessments and diagnoses to the court which may be determinative of outcomes and can have profound consequences for parents and children including which parent a child should live with and how much contact they should have with each parent, if any.”
Helena* had her children removed after a court-appointed psychologist – who was not regulated – advised a judge she had “alienated” them from their father.
The mother, who has been banned by the courts from having any contact with her children, said: “This guidance has been needed for a long time. It’s a positive step but the reality is it remains at the discretion of judges to choose an expert who is not regulated.”
She added: “I think it is really important to look at the diagnoses being made. In my case an unregulated expert made serious diagnoses of my children, about whom there were no previous concerns, after only a handful of short meetings.”
Helena said her own diagnosis was so severe that you would expect someone with the mental health challenges, as described to the court, to be receiving inpatient care.
She added: “The impact of that diagnosis was life-destroying on every level.”
*Some names have been changed to protect identities.
