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Testing the conclusions of an expert

By December 19, 2018November 1st, 2021No Comments

A mother has been successful in arguing that she should be able to look at the raw psychological test data that an expert psychologist used to base an opinion on, in a recent case heard in the Family Court in Brisbane. It’s an interesting case because it shows how the courts have to balance the right of a litigant to reasonably test the conclusions or opinions of an expert in their matter, against the public interest.

In the case of Corey & Jebbitt (court-ordered pseudonyms), the mother had subpoenaed the single expert psychologist to produce the mother’s test results which had been obtained when the psychologist applied a battery of quantitative psychological tests to the mother, father and child involved in the parenting dispute.

The mother questioned the accuracy of some of the content of the expert’s report and therefore wanted to test the accuracy of the expert’s opinion by being allowed to look at her test results herself, including the record forms, score sheets and response forms for the six tests she had taken: the Personality Assessment Inventory, Paulhus Deception Scales, the Child Abuse Potential Inventory, the Childhood Autism Rating Scale Second Edition Questionnaire for Parent and Child Observations, the Social Responsiveness Scale Second edition and the Adaptive Behaviour Assessment System Third Edition.

The psychologist had then objected to the production of the data on a number of grounds, mainly that it was against the public interest, and said her summary of the test data should be sufficient for the purposes of the family law matter. But the court disagreed.

Psychological testing depends on the confidentiality of the test instruments, their banks of questions and how they are scored. If the details of the tests are made public, the danger is that members of the population the test is designed for can discover how to manipulate their answers in order to score “better”.  If test-takers have prior access to test materials, it is against the public interest as it affects the utility and the psychometric integrity of the tests. This means that not only can it affect an individual’s assessment but it can reduce the fairness and accuracy of the tests for other members of the public.  The expert also expressed concern that the tests should only be administered and interpreted by people qualified to do so, otherwise the risk of misuse of the test or misunderstanding of the results could occur. And it’s true that it is unclear how the mother intends to query the expert’s opinion once she has access to the raw data, as the raw data is actually quite difficult for a layperson to interpret.

In seeking the protection order against producing the test materials, the psychologist also noted that it is part of the psychologists’ Code of Ethics that they protect the integrity and security of test material and data. She also noted there were copyright law and trade secret issues if the tests were released into the public domain.

In the ex tempore reasons for judgment, the judge said that legal principles meant that when an expert supplies a court with an expert opinion, the expert needs to be able to provide enough facts or criteria to allow the validity of their conclusions to be evaluated. Any opinions based on observations need to be based on facts that can be identified and proved admissible. Following from that, the court said that a litigant needs to have the reasonable opportunity to test the validity or correctness of the facts or data that were underlying the conclusions made in the expert’s opinion.

But, as the court noted, there is also a principle of law that courts won’t compel the production of evidence in documents if their publication could be “injurious to the public interest”. This is known as public interest immunity from production of documents. These two principles create a “tension between the need for adequate exposure of the relevant factual foundation for an opinion, on the one hand, and public interest immunity on the other”.

In making the orders allowing the mother access to the data, the court said restrictions would ensure that the test data was not to be circulated in the public domain. The material would only be produced to the court, which would have possession of the documents and regulate access to them under subpoena. There would be no copies taken and it would not be released into the public domain. The mother would be allowed to have access to inspect the material only while appearing in court, for the sole purpose of undertaking any questioning she had of the expert. The material, being an exhibit, would be returned to the original source (in this case the expert) on the conclusion of the proceedings and any appeal.

You can read the case in full here.

Do you need help with a family law matter? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.

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