Recording neuropsychological testing

Since the decision of Master Davison in Mustard v Flower [2019], there has been uncertainty in relation to the approach to the recording of neuropsychological assessments in the medicolegal context.

In Mustard the claimant had recorded several of the defendant’s medicolegal examinations, including that of the neuropsychologist. Some recordings had been done openly with the knowledge of the medicolegal expert, others had been done covertly. Master Davison gave a lengthy judgment on what is a very complicated issue.

The British Psychological Society Guidance

Since that time, practitioners have been waiting for guidance to be issued by the British Psychological Society regarding the efficacy of the recording of neuropsychological assessments. In May of this year, the Society published its ‘Guidance on the recordings of neuropsychological testing in medicolegal settings’ (the Guidance).

The Guidance does recognise that there might be benefits to recording assessments - it can be used as an aide-memoire, it can be used to clarify misunderstandings and can show transparency in relation to the neuropsychological assessment in circumstances where a reliable and valid assessment is crucial. However, it is clear from the Guidance that despite those possible benefits, the recording of neuropsychological assessments is not recommended for a number of very important reasons.

There are 10 detailed points set out in the Guidance which can be summarised as follows:

1. Deliberate covert attempts or “unregulated” overt attempts to record neuropsychological assessments “do not represent best practice and potentially invalidate any assessment conducted”.
2. There is a need to ensure that claimants do not have the opportunity to practice or familiarise themselves with the tests. With a recording they could certainly do so. This could positively or negatively influence the test scores.
3. The tests ought not to be within the public domain. To do so could “reduce the reliability and validity in the testing of the wider population” and the recording of tests obviously creates that risk.
4. There is “a duty to minimise the risk that copyright is violated” in respect of the test materials.
5. Deliberate covert recording is not acceptable in any circumstances and should be prevented.
6. Recording the testing is not advisable and should be avoided other than in circumstances where the benefits can be shown to “significantly outweigh the risks”. The decision should ultimately be made on clinical grounds (which suggests this is largely a matter for the clinician).
7. The claimant should be notified of the Guidance in advance of the assessment, that recording the assessment "is contrary to professional guidance for neuropsychologists and may well infringe copyright”.
8. Prior written agreement should be obtained from the claimant confirming “that they will not record any aspect of the procedure without prior consent”.
9. If covert recording is discovered by the clinician, the claimant should be invited to stop the recording and to delete what has been recorded. The assessment should be discontinued if the claimant refuses.
10. There is a duty on neuropsychologists in medicolegal practice “to work ethically, adhere to the code of conduct of their professional and/or regulatory body, protect copyright of the test materials and to ensure patient safety”.

Comment

The Guidance is therefore set out in clear and unequivocal terms. Whilst the British Psychological Society leave the door open for the possibility of recordings taking place, this can only really be done on clinical grounds and, importantly, with the prior consent of the clinician undertaking the assessment.

Whether this is going to change claimant behaviour is yet to be seen. However, it would seem unlikely that the court will look kindly upon a claimant who has conducted covert recordings in circumstances where they have been told that such action is not compliant with the recommendations of the governing body and could invalidate the assessment process. Expert neuropsychologists should be reminded to provide the claimant with the recommended warning/notice set out in the Guidance.

The case of Mustard v Flower is of course still ongoing with a more recent hearing and Judgment having dealt with the issue of amending the Defence to plead fundamental dishonesty. We await the final outcome of that case with interest.

Read other items in Healthcare Brief - July 2021