BPS guidelines on the recording of medico-legal examinations

10 Jun 2021

On 4 June 2021, the British Psychological Society (BPS) published its guidelines in respect of the recording of neuropsychological testing in medico-legal settings.

The BPS guidance refers to the judgment of Master Davison in Mustard v Flower [2009] which considered the issue of the recording of neuropsychological examinations of both the interview and the formal cognitive testing.  In Mustard, the recordings of the tests were made covertly without the permission or awareness of the clinical neuropsychologist undertaking the assessment. 

It is noted that there is an increasing trend to record clinical encounters. It is accepted that in certain situations a recording may benefit as an “aide memoire” and   explore and clarify any misunderstandings about the purpose and interpretation of an assessment. 

There are however negative implications of recordings, such as threats to the validity of the assessment itself or, in the case of covert recording, to a violation of trust within the relationship between the psychologist and the individual undertaking the assessment.

The risks and benefits of recording neuropsychological testing should be carefully considered by all parties. The validity of formal testing is dependent on an adherence to a set of standard conditions relating to both the test methods and the testing environment.  The use of recording may adversely influence the quality of the interaction and therefore the validity of the assessment. 

Summary of Guidelines

The BPS Guidelines are summarised as follows:

  1. In accepting instructions, medico-legal experts should inform their solicitors that both deliberate, covert and unregulated overt attempts to record the formal neuropsychological assessment do not represent best practice and could invalidate any assessment conducted.  If assessments are recorded, this should also be made clear in any subsequent report produced for the court.
  2. Psychologists have a duty to maximise the validity of tests administered to:
    • Ensure claimants are not given opportunities to practise or familiarise themselves with test materials;
    • To minimise the risk that test scores are either positively or negatively influenced by the active recording.
  3. Psychologists have a duty to protect the security of tests administered and recognise that recording potentially facilitates test processes being disseminated within the public domain, and this will reduce the reliability and validity in the testing of the wider population.
  4. Psychologists have a duty to minimise the risk that copyright is violated and to take reasonable steps to prevent distribution of test materials other than to those directly instructed.
  5. Deliberate covert recording of neuropsychological assessment is not acceptable under any circumstances and steps should be taken to prevent this (asking the claimant to sign a contractual document etc).
  6. Recording neuropsychological testing by the claimant is not usually advisable and steps should be taken to prevent this, other than when it is agreed that the benefits significantly outweigh the risks.  This decision should be made on clinical grounds by the expert responsible for administering the testing for a range of claims that might include:
    • Traumatic brain injury
    • Mental health
    • Child assessment
    • Pain
  7. Psychologists should ensure that claimants and any accompanying person are clearly advised of the BPS advice on recording prior to assessment.
  8. Psychologists should utilise established protocols to deal with such issues including the completion of a signed document by the claimant to agree that they will not record any aspect of the procedure without prior consent.
  9. If the clinician becomes aware of deliberate attempts at covert recording, they should ask the claimant politely to stop recording, to delete the record and discontinue any formal assessment should the claimant refuse to accede to any request.
  10.  Neuropsychologists in legal medical practice have a duty and responsibility 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.

Covert recording

The guidance discusses deliberate covert recording and considers it inappropriate as the undertaking of such recordings is likely to undermine the validity of information collected. 

This issue was considered by Spencer J in MacDonald v Burton [2020] where the matter was heard against the backdrop of Mustard and the BPS’s draft, but at the time unpublished, guidelines where the Judge agreed that it was not appropriate for either examination or testing to be recorded as this would render the testing outside the test standardised conditions, it would change behaviour and also the tests are subject to copyright.    

Summary for practitioners

As the BPS guidance has now been published and released it may become commonplace for a psychologist to provide a document for claimants to sign before an examination takes place. This could specify that they will not covertly record the assessment or, in the alternative, reach agreement with the practitioner that they are happy for the examination to be recorded.  

If a claimant wishes to record an examination, they should provide valid reasons as to why they consider the assessment should be recorded. They should also be expected to record their own medico-legal experts to ensure a level playing field. 

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to clients of BLM. Specialist legal advice should always be sought in any particular case.

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