Abstract
This slide gives an overview of my talk this evening. Firstly, I am going to give some pointers on which psychologist to consider instructing or recommending in the case of physicians. I will then cover aspects of psychological assessment before looking at what educational psychologists can offer. This includes an example of the possible effects of traumatic brain injury (TBI) on learning and how an educational psychologist may advise, leading on to some discussion of special educational needs (SEN) and working with schools.
There are several types of applied psychologists in practice but lawyers and physicians dealing with medico-legal assessments are most likely to work with clinical psychologists, educational psychologists and neuropsychologists.
Clinical psychologists start with an accredited degree in psychology, following this with their professional PhD. Their main focus is with the mental and physical well-being of the patient. They are trained across the entire age range and then specialise in paediatrics, adults or the elderly. They are employed largely in health and social care settings, in teaching hospitals, training and in private practice.
Educational psychologists also start with accredited degrees in psychology. Until 2006, educational psychologists were also expected to train and work as teachers before completing their professional training. Our training was then brought into line with all the other applied psychologists: a three-year PhD is now expected before practice. Educational psychologists’ main focus is on enabling children’s learning, social and emotional development, looking at the educational implications of any difficulties or disabilities. Most educational psychologists work in local authorities whilst others work in private practice or are involved in training and research.
All applied psychologists who wish to work with the public must be registered practitioners with the Health and Care Professions Council and we adhere to Codes of Conduct and Ethics from the British Psychological Society.
Most educational psychologists offer intervention or treatment, as well as assessment: cognitive behaviour therapy, solution based or personal construct work, which are two other approaches found to be very useful with teenagers and families, as well as family therapy. Providing consultation and training for schools is a regular part of our work. Some educational psychologists specialise, with a focus on specific learning difficulties such as dyslexia, autism spectrum disorder, and so on. We work with pre-schoolers right up to the age of 25 under the new legislation. Most of us previously worked up to adulthood, advising in further and higher education and also offering some workplace assessments for those with specific learning difficulties like dyslexia.
Both clinical and educational psychologists can undertake specific accredited post-professional training to become neuropsychologists. These professionals have expertise in the relationship between brain and behaviour, the effects of the site of brain injury and disorders affecting brain function.
What might be helpful for solicitors to consider when instructing a psychologist? This may be relevant also for physicians acting as experts in assessing young people going through litigation.
What is the main focus right now? Physical recovery is usually the first priority but when the young person returns home from hospital, their well-being, and re-introduction to the education system and community, become the main focus. The age at injury and the extent of injury are clearly relevant here. How the family is coping is also relevant. There may be clinical psychologists already involved through the National Health Service (NHS). However, when there is litigation, thought has to be given as to which psychologist to instruct to best address the young person’s needs and advise the court.
Psychological reactions: this is the area of expertise of clinical psychologists although some educational psychologists have been trained in assessing these. If there are mental health concerns it may be advisable also to instruct a child and adolescent psychiatrist, as they are medically qualified.
Cognitive effects: for example, the impact on intellectual ability, memory, problem solving, executive functions (especially after TBI), sensory and verbal processing. Both clinical and educational psychologists can assess in all these areas, as well as looking at behavioural changes or concerns and everyday functioning.
In the event of a brain injury, neuropsychologists can carry out an in-depth assessment.
Implications for education: here an educational psychologist is an obvious choice. They are very familiar with the education system, its legislation and in addition, schools are used to working with them. However there are also clinical psychologists with experience and knowledge of the current educational system and curriculum.
What other professionals have been instructed?
These include paramedical therapists as well as psychologists and medical specialists such as neurologists. Before psychological assessment, it is helpful to have assessment by speech and language therapists and occupational therapists. There may be some overlap with aspects of psychological assessment so it is important to spread out the times when these assessments take place. In addition, the paramedical therapists can recommend helpful input during early stages of rehabilitation.
Joint expert witnesses. For solicitors it is worth considering whether a joint expert educational psychologist would be appropriate. Education and schooling are areas in which there is usually less controversy, especially if the local authority and school have already funded some provision. In my experience, there is rarely significant difference of opinion between the educational psychologists for claimants and defendants in personal injury or clinical negligence disputes. This might be over additional input such as music therapy or more one-to-one support, for example. However, where the court is deciding on much bigger issues such as new accommodation, specialist equipment, adult capacity and employment, these could be considered fairly minor in terms of quantum.
Who should be first to assess? In many cases there are two applied psychologists assessing on each side of the case. Who should assess first? The child's age is one factor that helps to determine this. If a young person is just about to transfer to another phase: e.g. nursery to mainstream school, primary to secondary school; sitting public examinations, secondary onto further education; then it might be wise to obtain advice on educational issues first.
On the other hand, there may be psychological reactions that are interfering with everyday functioning in which case a clinical psychologist or psychiatrist may be an advisable first assessor. Where there is acquired or TBI I believe a neuropsychologist’s assessment is a priority. It is worth asking the psychologists to be instructed what each of them thinks: we are all bound by our codes of practice to consider the best practice for the young person and the family.
What records will be needed and are available? I cannot comment for clinical psychology colleagues but as an educational psychologist, my primary need is for as full education records as possible. Full hospital records and observations are not usually necessary to address educational implications although discharge summaries and any comments or reports from hospital teachers are valuable. Expert reports from paediatric neurologists, neurosurgeons and psychiatrists are also invaluable.
I suggest discussing with the educational psychologist to be instructed what records are needed, which saves costs and valuable professional time. In addition there are other pieces of information that are necessary as will now be explained.
We will require a letter of authority to make contact with the school, even if solicitors have already obtained the education records. This is due to Safeguarding Policy and Practice as we may be observing and assessing in school and asking for access to the young person’s timetable and work.
Premorbid information is essential, especially from the nursery or school year, before and indeed just after the injury. For younger children the ‘Red Book’ is useful as are any developmental records. The Early Years Foundation Stage Profile that is completed during nursery and the first year of school (Reception) covers social interaction, physical development, ‘knowledge of the world’, as well as language, early numeracy and literacy. A score is given for each of these and predictions can be made about likely progress.
At present there will still be available records of attainment at the end of the Key Stages (Year 2 and Year 6) which are also useful. Government tables can be consulted by the educational psychologist to give predictions at General Certificate of Secondary Education (GCSE) and General Certificate of Education (GCE) Advanced Level for example. The National Curriculum levels are being phased out with the current new systems but for older pupils these should still be available. In the first term of secondary school, most young people will be given a cognitive ability test and reading test. Although these are group tests, the results are extremely useful particularly if they happened either just before or just after the index incident.
Full attendance records are also important as we can look for patterns of absence as well as the amount of time lost to medical appointments and hospitalisation.
Lastly, we need details of any other psychological assessments that have taken place and are about to take place. This is especially important when several psychologists have been instructed, for example, an educational psychologist and a clinical neuropsychologist. Part of the reason for this is around the psychometric tests most of us will use. Psychological assessment takes time and it can be demanding for the young person: therefore it is in the young person’s interests for these assessments to be spaced out in time and kept to a minimum. This is another reason why it is worth considering a joint expert educational psychologist.
Those of you who have read psychological reports will have come across these. Where possible psychologists use norm referenced tests: those compiled on large samples of young people of different ages, where the raw scores are then converted into age-related tables using the bell curve of normal distribution, usually with an average standard score of 100. They may not be repeated within a certain time, and this has become an important issue for psychologists in litigation work.
Psychometric tests of ability and memory, for example, assess the speed and ability to generate problem-solving strategies on novel tasks. If young people repeat the tests, the tests are no longer novel. There can be practice effects or disaffection and disengagement in the assessment process because the young person has to sit the same tests over and over again.
The implication is that all psychologists working with a young person, expert witnesses, psychologists in treating hospitals, the local clinical and educational psychologists, need to contact each other. We need to know when the assessment took place and which tests were used. This is good working practice and enables us to observe our duty under the Children Act, to take account of the paramountcy of the child’s welfare. In addition under the Children Act the young person can refuse to be assessed. Exchanging this basic information does not affect ‘opinion’, because as experts we are not sharing the actual results or interpreting them at this stage.
What specific skills can educational psychologists offer in medico-legal assessments? Assessing in the educational setting is best practice. Where feasible this can include observation of the young person in class, around school and in the playground, especially in primary and early secondary school.
Observation is also important where young people have severe learning or physical difficulties and giving psychometric tests is not feasible. Carefully noting what is happening between the staff and this young person, or the young person and peers, is going to be more valuable, because that is where we can interpret levels of development as well as difficulties. Discussion with key staff members is also useful.
This kind of assessment inevitably takes longer than administering psychometric tests although my experience is that it will be helpful to the court.
We can also advise on input: whilst one-to-one support can be valuable, it can also lead to over dependence on adult input so a balance is needed to ensure the young person has every opportunity to develop aspects of independence and social skills with peers.
In the latter years of secondary school educational psychologists can advise on the possibility of access arrangements for GCSE and GCE Advanced Level, as well as enabling school staff to understand the effects of residual injuries. The effects of acquired brain injury on young people are very subtle. If they have recovered from their physical injuries, but are still are suffering from other subtle effects of injury, it is often hard to “see”, and sometimes school staff are unaware or overlook these.
Here are some examples of how a TBI may affect a young person’s learning in school. Sometimes a young person copes well in the smaller more protected and simpler environment of primary school but transfer to secondary school can be problematic. The effects of brain injury may be exacerbated with the demands of a much bigger, busier environment, different subjects, different teachers and the loss of previously supportive staff and peers. Whilst some schools have effective transition programmes, others do not and teachers may well interpret the young person’s behaviour using familiar constructs such as “laziness”, “rudeness” resulting in “could try harder” and detentions. An educational psychologist can assess speed of processing in reading and written work for example, as well as assessing in the other areas if a clinical neuropsychologist has not recently done so. The educational psychologist can then advice on how best to work with the school to help the student progress as well as offering ideas on training and further support.
I am adding some information on working with schools as this is a key setting for the young person and one in which educational psychologists frequently focus their input. This is relevant to both solicitors and to physicians, especially those working as expert witnesses or involved in treatment.
Firstly it is important that a key staff member from school is invited to hospital and rehabilitation setting discharge meetings. Whilst present and past legislation has entreated those in health services, education and Social Services to work together, we all use different “languages”, for example having different definitions and understanding of the word “need”. I still find cases where health personnel have only distributed key informative correspondence to health staff, omitting the school or the local educational psychologist for example.
Schools are appropriately protective of their records and so it is important to explain exactly why records, reports, etc are needed. Some professionals ask school staff to complete questionnaires and they need to know the exact purpose for these.
Schools are busy establishments where even senior staff may be teaching. Non-teaching time is limited and is used for preparing lessons, marking and recording. Therefore it is important to keep expert visits to a minimum and to spread them out.
The same applies for assessments: removing young people from lessons means they have to catch up the work later. Given the reasons why we are involved, this is adding to an already difficult situation for the young person. This is especially pertinent in the years when national tests and public examinations take place. It is worth asking for school holiday dates and good days or half days when the young person will not miss key work.
Over the past 20 years school staff have had to take on many issues for which they were not originally trained: for example, dealing with allergies, safeguarding, specific learning difficulties and the integration into mainstream schools of those with disabilities. When young people subject to medico-legal assessments return to school still with residual difficulties, perhaps a visual or physical difficulty, especially an acquired brain injury, it is very likely that the school will not have the knowledge, expertise or perhaps even the awareness level to manage this. Given that rehabilitation is almost always in the school setting, this can be problematic. If there is a case manager and rehabilitation team then there can be input to ease the re-entry to school. Here too care needs to be taken about the time for meetings in school and so good coordination and communication are essential.
Sometimes training is offered but it needs to be focused on the educational implications, not just the medical facts. I suggest including an educationalist in that training, either a specialist teacher or an educational psychologist. In the case of acquired brain injury, organisations such as the Child Brain Injury Trust (www.childbraininjurytrust.org.uk) can offer training, videos and written guidance.
Finally I would like to add some information on SEN as this may be especially relevant for the young person being assessed and is usually referred to in educational psychologists’ instructions and reports.
The Children and Family Act 2014 brought in new procedures for SEN although the definitions remain the same. The key document is the statutory guidance in the Code of Practice in SEN (Department of Education & Department of Health, 2015). Many non-educationalists assume that after injury or serious illness, an application for extra funding can immediately be made to the local authority. In theory this is so but without due consideration and the evidence to support the request, the application is likely to be refused by the local authority.
The first point is that most of the funding for SEN is now in schools. However it is not ring fenced. Schools differ in how they manage addressing the difficulties experienced by the probable 20% of their pupils that have SEN. Although there has to be a special needs coordinator, this person can be part-time. There is often extra support in small groups for those with literacy and numeracy difficulties, extra teaching assistants in class and extra materials. Schools are now familiar with managing dyslexia, many physical and sensory difficulties and autism spectrum disorder.
Secondary schools are likely to have bigger budgets due to their size and they often have highly trained learning support assistants.
The result is that the local authority will expect schools to deal with the majority of learning and behaviour difficulties. It is only the very small percentage who will be accepted as having the old ‘Statement’ or the new Education, Health and Care Plan (EHCP).
If the young person has a serious injury or has evident learning difficulties then special provision can be considered more easily and quickly. This still needs good evidence from physicians. This needs to explain the medical side briefly but also the educational implications. For example, fatigue may be a big issue and it will be helpful to outline how this will affect the young person. Processing speed may be slower, there may be changes in behaviour.
However, for the most part, the local authority is looking for what the school has provided, the aims of this, the outcomes and the fact that more funds are needed to fully address the young person’s educational needs. They may then agree to a statutory assessment under the 2014 Act. This includes requesting a range of reports from the parents and professionals to advise the local authority.
One dilemma here concerns expert educational psychology reports, which are addressed to the court and written under specific instructions. They usually include information that is highly confidential and may only have been disclosed for legal purposes.
Schools now have to buy in local educational psychology time and so will only do so if absolutely necessary and it is often for consultation only. If a young person returning to school shows few signs of SEN, the school may manage on their own. However the expert educational psychologist may highlight issues that lead to recommendations for extra support, for example.
I have had two situations as an expert witness where the other side’s educational psychology report has been sent to the local authority as part of the request for a statutory assessment, without the knowledge of the psychologist involved. I have challenged this situation, partly because I disagreed with their opinions, but also because those reports were written to the court and for a different purpose. In both cases the requests for statutory assessment were denied by the local authority. In neither case had the local educational psychologist seen the reports or been asked for an opinion on the young person concerned. This is a dilemma because we wish to keep assessments to a minimum as discussed above. The expert has carried out a comprehensive assessment, yet the findings should not be shared. I have tried to alleviate this situation by asking permission to do a short report which can go to the school and local psychologist or be used for GCSE access arrangements. This is well worth considering although I appreciate that it may not always be appropriate.
In fact the Code of Practice for SEN makes it clear that psychological advice towards a statutory assessment should normally come from an educational psychologist employed or commissioned by the local authority. Most importantly, the educational psychologist advising the local authority in statutory assessment, “should consult any other psychologists known to be involved with the child or young person”. (SEN Code of Practice, s 9.49, page 156.) Here too there may be a difficulty if the expert psychological reports have not been disclosed.
If the local authority refuses to undertake a statutory assessment, or one is carried out and then they refuse extra funding through an Education Health and Care Plan, then the parents can appeal. Most solicitors will recommend the SEN and Disability Tribunal. This is costly and places the parents in a situation where they are then dealing with two forms of litigation. In the first instance I recommend mediation. The family’s current solicitor, or their case manager, can join parents in meeting the local authority officer to fully discuss, negotiate and come to an agreement thus avoiding tribunal proceedings on many occasions.
In Appendix 1, I have given some sections of the Special Needs Code of Practice that may be useful to solicitors and physicians where they are thinking of recommending statutory assessment by the local authority. I have also put some details of other documents that may be useful in working with young people and considering their educational needs at various stages.
With regards to assessment, it is a difficult one, because when they have the physical and mental impairments it is exceedingly difficult to look at not only the level of development but the rate of progress. This is where information and communications technology (ICT) and some innovative technology is beginning to help us. I have seen two cases recently where the young people have been able to eye point. Usually it is quite a small array of four pictures or icons, but obviously those arrays can increase over time. With the more sophisticated system, the child can eye point to, for example, a picture, icon or word in the top right-hand corner and fixate on it, and a verbal response is given by the computer. This has enabled me to assess concept development for example. Through such ICT systems, we have the means to find out far more about these young people’s cognitive skills and perhaps give a more realistic idea of their developmental level, rate of learning and prognosis. Otherwise the best assessment possible is through observation of the young person with school staff, therapists and parents plus discussion with those who know the child best.