Disciplinary law: an expert report must respect the scientific method
In a decision rendered in September 2007, the Professions Tribunal confirmed that only if faced with an unreasonable decision rendered by a disciplinary council can it choose to intervene and modify said decision. If the disciplinary council, considering the quality of the exhibits presented and the expert testimony heard at trial, decides that the written report filed by the psychologist before a divorce court constitutes a psycholegal expert report, the Professions Tribual cannot decide otherwise unless it has been demonstrated that the council’s analysis is unreasonable. In this particular case, both the Ordre des psychologues du Québec’s Disciplinary Council and the Professions Tribunal agreed that any psychologist who prepares an expert report must respect the scientific method (Lakmache v. Psychologues (Ordre professionnel des), 2007 QCTP 117).
THE FACTS
In December 2004, the Ordre des psychologues du Québec’s Disciplinary Council decided that the written report, prepared and filed before a divorce court, by the psychologist-respondent, titled «Essai d’analyse psychologique sur étude de dossier » (« an attempt to provide a psychological analysis upon review of the file ») was indeed an expert report. The Council decided that seeing as the report included the psychologist’s opinion on the ex-wife, person with whom she had not met nor evaluated, the psychologist had failed to respect the scientific principles generally accepted in psychology.
The Disciplinary Council specified that it is the content of a given report, and not necessary its title, that determines its qualification. All expert reports, including those titled « Essai » (« Attempt ») must respect the scientific principles generally accepted in psychology, as is provided by section 1 of the Code of ethics of psychologists.
The psychologist-respondent appealed the Council’s decision, claiming that the report in question was but an « essai » (an « attempt »), and was not, in any way, an expert report. According to the psychologist, the Council erred in fact and in law when appreciating the content of said report and its proposed use.
THE PROFESSIONS TRIBUNAL’S DECISION
After having considered the arguments presented by each of the parties, the Professions Tribunal dismisses the arguments invoked by the psychologist-respondent and confirms the following conclusions, all of which were initially drawn by the Disciplinary Council :
1. An attempt does not pursue the same objectives as those pursued by an psycholegal expertise : the former aims to obtain a summary report in light of the information already found in the client’s file, while the latter aims to obtain a psychologist’s opinion on a person following a psychological evaluation, all within a context of litigation.
2. A « Notice of communication of an expert witness’ report » filed in the court record will often imply that the psychologist, author of said report, is an expert witness.
3. A report in which the psychologist makes recommendations to the Court will be treated as an expert report.
4. When preparing and drafting an expert report, the psychologist must respect the scientific principles generally accepted in psychology, all while acting with diligence, objectivity and moderation within his mandate.
5. The psychologist who drafts an expert report must make all necessary verifications prior to advancing any clinical opinions, notably by meeting and/or evaluating all the parties implicated.
THE LESSONS TO BE LEARNED
1. Titling a report « Essai d’analyse psychologique sur étude de dossier »(« an attempt to provide a psychological analysis upon review of the file ») cannot alter its qualification if said report clearly constitutes a psycholegal expertise.
2. An expert’s conclusions must be drawn from all the information collected by the psychologist and shall not be compromised by the particularities of the mandate or any requests that may be made by the party who retained the expert’s services.
3. All psycholegal expert reports must respect the scientific method.
4. If the Disciplinary Council does not render an unreasonable decision, the Professions Tribunal cannot substitute its opinion to that of the Council’s Dubé Légal inc., Montréal disciplinary law lawyers.
