The Lawyers Weekly - November 5, 2010

Recording
Continued From Page 15
audio or videotaping include:
Levelling the playing field.
The dissent in Adams suggested
that in cases where the doctor’s
version differed from the
evaluee’s version, there would be
a tendency to accept the doctor’s
version of what was said, either
based on his or her note-taking,
or the court’s tendency to believe
the expert;

To provide an actual recording of what was said, which is presumptively always important in legal matters. In any specific case, a verbatim record could benefit one side more than the other;

In Adams, Justice Lang concluded in her dissent that compelling an audio/video record of a defence IME would advance the interests of justice — a proposition supported by reference to the findings of the Osborne Report and the Goudge Inquiry, both of which Justice Lang felt raised “clear concerns about insuring the objectivity of expert opinion”;

There is no rule within the
field of psychiatry (or medicine)
that prohibits the practice of
recording defence IMEs;
The exercise is neutral, nei-
ther causing any problems or
conferring any benefit, hence
there is no reason to disallow it
or reject any request for it;
 Recording the assessment
would produce optimal per-
formance in both the examiner
and examinee.
The arguments against
recording are somewhat length-
ier and include:
Distracting the examiner from
the task at hand. Psychiatric
assessments are generally
(except in teaching scenarios)
solo medical tasks. Gathering
information from an evaluee,
either in response to questions
or through the evaluee’s volun-
tary provision of information is
generally best achieved in a two-
person encounter. The presence
of third parties and recording
devices interfere with that;
The presence of equipment,
either with or without a third
party running it, could interfere
with the rapport the examiner
needs to establish with an
evaluee, even for IME purposes;
Recording could interfere
with the quality or integrity of
the psychiatric assessment by
having either the plaintiff or
examiner consciously or uncon-
sciously play to the camera.
With a camera present, an
evaluee may be tempted to
under-report or exaggerate con-
cerns or symptoms. Examiners
concerned about the potential
uses (or abuses) of the recording

“Too little is known
about the impact of
recorders in the
assessment process
for a court to mandate
it as a standard for
practice.

tively few psychiatric experts are
willing to conduct audio/video-
taped assessments. Those who
agree to this process may poten-
tially be drawn from the
inexperienced ranks. If the min-
ority in Adams had prevailed,
the parties could have a hard
time locating experienced
experts willing to participate;
Apart from the specific litiga-
tion for which a recording may
be created, that same recording
may resurface subsequently, in
the event the evaluee complains
to the assessor’s professional
regulatory body;

What is likely the most important point is that psychiatric assessments are procedures of a sort. There are articles in books written about how to conduct them. There is no edict or direction by any professional or authoritative body at present, either in the U.S. or Canada, that mandates or recommends recording a medicolegal psychiatric assessment.

The influence of video or audiotaping forensic psychiatric interviews is essentially unstudied. There is no science to say whether it improves the quality of the assessment, or diminishes it. Some studies on videotaping interviews in the context of traditional ( therapeutic) psychiatrist-patient relationships, and not forensic con-tacts/interviews, have shown that the use of tape recorders or video recording devices may have a substantial qualitative and quantitative inhibiting effect on the exchange between clinician and patient.

Had the dissent in Adams
been the majority view, orders
requiring the recording of IMEs
could have become frequent
practice in Ontario. Fortunately,
it did not. Too little is known
about the impact of recorders in
the assessment process for a
court to mandate it as a standard
for practice. Of the 15 to 20 text-
books on “law and psychiatry”
out there, not one requires or
endorses videotaping IMEs. 

may end up inhibiting their
spontaneity, and focus too much
on image and elocution. Med-
icolegal assessments (as opposed
to therapeutic assessments)
might involve an element of
cross-examination (at least more
confrontation) of the evaluee;
There may be concerns about
the quality of the recording,
and the extent to which the
actual recording could be tam-
pered with;
Although the “Deemed
Undertaking Rule” (30.1) pre-
vents a party from misuse of
information gathered in the
course of litigation, once any
evidence — including, in a prob-
lematic case scenario, the
recording — becomes an exhibit
in court, it is available to the
media, or most anyone else.
What was intended to be private
could find its way to a public
medium, including You Tube;
While the cost of recording is
a consideration, a bigger cost
could be associated with the
amount of fodder a recording
could create for the litigation
process — time would be added
to the examination, increased
cost to the parties when counsel
review and/or argue about
aspects of a recording, and time
in court, if recordings are chal-
lenged;
My experience is that rela-
Hy Bloom is a forensic
psychiatrist (and lawyer by
training) in Toronto who
assesses individuals whose
psychological and emotional
state, motivation, or behaviour
are of potential relevance in a
criminal, civil, professional
regulatory, or employment
matter. He thanks Doug Wal-
lace, of Wallace Evoy-Smith
LLP in London, Ont. for his
assistance with this article.

unmistakable common thread is the increasing insistence of judges, arbitrators and commissioners upon more civil and respectful behaviour in the workplace and avoidance of conduct that a reasonable person should foresee as leading to mental injury,” Shain concluded in his report.

He noted that the U.K. has
moved beyond legal ambiguity
and introduced management
standards to address the issues.
This, he said, is the next step for
this country. “Now, in Canada,
we are at the stage of providing
employers with guidance…The
next step is national standards.”
No matter where the law
guides employers—and no mat-
ter how psychologically safe and
welcoming a workplace may
be — there will always be employ-
ees who suffer from mental ill-
ness, said Liberman. “You can
have the dream workplace and
one in five of your employees can
still become depressed. The
workplace does not trigger all
depression, anxiety and bi-polar
disorders—and this trend for
psychologically safe workplaces
will not be a cure-all.” 
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