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Medical Reports for Children’s Court Anne Smith Medical Director VFPMS (images of children removed)

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1 Medical Reports for Children’s Court Anne Smith Medical Director VFPMS (images of children removed)

2 When writing medico-legal report Ask yourself What is the purpose? How should it be structured? What information must be in it What information might be in it? How should it be worded? What are the important “do”s and “don’t”s?

3 Types of medico-legal reports Child Abuse (perhaps not?) Letter to colleague Child Protection - for information Child Protection – Court Report Criminal justice system (for criminal court) Victims of Crime Compensation Expert Opinion

4 Information in medico-legal report Should enable you to comment on Cause of injury – Accident or assault ……& neglect – Mechanism (nature of insult & forces) – Certainty / probability Timing of injury Circumstances surrounding injury Treatment required Outcomes (potentially life-threatening?) And make Recommendations

5 Objectivity An expert witness does not compromise objectivity by defending, forcefully if necessary, an opinion based on the experts specialised knowledge which is genuinely held but may do so if the expert is, for example, unwilling to give consideration to alternative factual premises or is unwilling, where appropriate, to acknowledge recognised differences of opinion or approach between experts in the relevant discipline. guidelines from the Federal Court of Australia

6 Impartiality Stick to the facts Eliminate bias This is NOT time to go out on a limb Focus on the TRUTH (the whole truth, and nothing but the truth…..)

7 History of prior criminal behaviour +/_ sentencing In accordance with local reporting requirements / legislation in relation to notifications to statutory authorities (Child protection) Hearsay (depends on the court) Ask yourself: Is your evidence (legally) able to be presented?

8 Daubert: whether the theory or technique in question can be (and has been) tested, whether it has been subjected to peer review and publication, its known or potential error rate, and the existence and maintenance of standards controlling its operation, and whether it has attracted widespread acceptance within a relevant scientific community Daubert v. Merrell Dow Pharmaceuticals (92-102), 509 U.S. 579 (1993) Hard vs soft sciences Eg DNA fingerprinting vs social sciences / psychology (opinion about witness reliability, state of mind, interpreting behaviour) Ask yourself: Is your evidence (legally) able to be presented?

9 Attending court without first having prepared a good medical report is like…….. contestcache.asp?contest_id=2455&start =51&end=60&display=photoshop#entries

10 Ensure that the Medical Report (a) is clearly expressed and not argumentative in tone; (b) is centrally concerned to express an opinion, upon a clearly defined question or questions, based on the expert’s specialised knowledge; (c) identifies with precision the factual premises upon which the opinion is based; (d) explains the process of reasoning by which the expert reached the opinion expressed in the report; (e) is confined to the area or areas of the experts specialised knowledge; and (f) identifies any pre-existing relationship between the author of the report, or his or her company etc, and a party to the litigation (eg a treating medical practitioner). guidelines from the Federal Court of Australia

11 Separate the following: Facts – Those things that are known to be true Circumstantial evidence – Those things that might influence opinion about the likelihood that a proposition is true Speculation – Imagine a scenario (Probably best avoided) Opinion – Evaluation of likelihood that a proposition is true References – evidence base

12 Writing a medical report For whom? How will it be used? Who owns it? What qualifiers and protection is required? Differing format for 1. Criminal justice (police report) 2. Expert opinion 3.Child Protection 4.Victims of Crime Comp 5.Family Court 6.Coroners Court 7.Medical Board hearing

13 Smithtown Family Clinic 1 Parkside Way Smithtown 3006 Ph Fax rd February 2004 Detective Senior Constable Plodd Smithtown Criminal Investigation Unit 122 Smith’s Road Smithtown 3006 Re: Mr John Smith DOB: 13th January 1970 I, Mary Nicole Brown of the Smithtown Family Clinic, 1 Parkside Way Smithtown Hereby state that: I am a medical practitioner registered in the state of Victoria. I hold the qualifications of Bachelor of Medicine and Bachelor of Surgery conferred in 1988, and Fellowship of the Royal Australian College of General Practitioners conferred in I have worked in the capacity of a general practitioner in both rural and metropolitan practice since Reprinted from Australian Family Physician Vol. 33, No. 11, November 2004 Helen Louise Parker. Writing a Police Statement

14 Smithtown Family Clinic 1 Parkside Way Smithtown 3006 Ph Fax rd February 2004 Detective Senior Constable Plodd Smithtown Criminal Investigation Unit 122 Smith’s Road Smithtown 3006 Re: Mr John Smith DOB: 13th January 1970 I, Mary Nicole Brown of the Smithtown Family Clinic, 1 Parkside Way Smithtown Hereby state that: I am a medical practitioner registered in the state of Victoria. I hold the qualifications of Bachelor of Medicine and Bachelor of Surgery conferred in 1988, and Fellowship of the Royal Australian College of General Practitioners conferred in I have worked in the capacity of a general practitioner in both rural and metropolitan practice since Reprinted from Australian Family Physician Vol. 33, No. 11, November 2004 Helen Louise Parker. Writing a Police Statement

15 Smithtown Family Clinic 1 Parkside Way Smithtown 3006 Ph Fax rd February 2004 Detective Senior Constable Plodd Smithtown Criminal Investigation Unit 122 Smith’s Road Smithtown 3006 Re: Mr John Smith DOB: 13th January 1970 I, Mary Nicole Brown of the Smithtown Family Clinic, 1 Parkside Way Smithtown Hereby state that: I am a medical practitioner registered in the state of Victoria. I hold the qualifications of Bachelor of Medicine and Bachelor of Surgery conferred in 1988, and Fellowship of the Royal Australian College of General Practitioners conferred in I have worked in the capacity of a general practitioner in both rural and metropolitan practice since Reprinted from Australian Family Physician Vol. 33, No. 11, November 2004 Helen Louise Parker. Writing a Police Statement

16 Smithtown Family Clinic 1 Parkside Way Smithtown 3006 Ph Fax rd February 2004 Detective Senior Constable Plodd Smithtown Criminal Investigation Unit 122 Smith’s Road Smithtown 3006 Re: Mr John Smith DOB: 13th January 1970 I, Mary Nicole Brown of the Smithtown Family Clinic, 1 Parkside Way Smithtown Hereby state that: I am a medical practitioner registered in the state of Victoria. I hold the qualifications of Bachelor of Medicine and Bachelor of Surgery conferred in 1988, and Fellowship of the Royal Australian College of General Practitioners conferred in I have worked in the capacity of a general practitioner in both rural and metropolitan practice since Reprinted from Australian Family Physician Vol. 33, No. 11, November 2004 Helen Louise Parker. Writing a Police Statement

17 Background I have received a request from Detective Plodd to detail the injuries received by Mr Smith as a result of an alleged assault on him on Saturday 12th January In particular he has asked whether Mr Smith’s head wound could have ‘resulted from being struck with a baseball bat or could have occurred when he fell to the pavement’. I examined Mr Smith at this clinic on Tuesday 15th January 2004, 3 days after he was allegedly assaulted, and again on Monday 21st January 2004 to remove his sutures. I have been provided with a signed consent form from Mr Smith for the release of this report to police. This report has been prepared from: my clinical notes made at the time of the examination a letter from the Smithtown Hospital Emergency Department.

18 Background I have received a request from Detective Plodd to detail the injuries received by Mr Smith as a result of an alleged assault on him on Saturday 12th January In particular he has asked whether Mr Smith’s head wound could have ‘resulted from being struck with a baseball bat or could have occurred when he fell to the pavement’. I examined Mr Smith at this clinic on Tuesday 15th January 2004, 3 days after he was allegedly assaulted, and again on Monday 21st January 2004 to remove his sutures. I have been provided with a signed consent form from Mr Smith for the release of this report to police. This report has been prepared from: my clinical notes made at the time of the examination a letter from the Smithtown Hospital Emergency Department.

19 History Mr Smith told me that he had been assaulted on the previous Saturday night (ie. 3 days before the consultation). He said he was unable to recall much of what had occurred as he had consumed a considerable amount of alcohol. He stated the following to me: he was in a queue outside a nightclub and was shoved from behind he turned around and verbally abused the male standing behind him and that male punched him in the face he recalled being on the ground and thinks he was struck on the head with a baseball bat he was taken to hospital by ambulance. The letter from the hospital indicated a wound on his scalp was sutured. Mr Smith attended here requesting review and documentation of his injuries, and a medical certificate for work. There is no past medical history of relevance to this allegation. Symptoms of recent injury Mr Smith complained of headaches and indicated his injuries to me.

20 Opinion In summary, Mr Smith is a 34 year old man whom I examined 3 days following an incident in which he was allegedly punched to the face and possibly struck with a baseball bat. He had evidence of a black eye and a sutured wound on the back of his scalp. With respect to the findings I am of the opinion that: 1. The bruise around the eye is the result of blunt trauma: blunt trauma may result from a blow or forceful contact with an object it is impossible to accurately age a bruise, however that observed could have occurred within the time frame of the alleged incident it is not possible to state more precisely the cause of this bruising around the eye. It may have resulted from a punch, however other mechanisms are possible this injury should fully resolve leaving no permanent sequelae, however, a blow to the eye has the potential to result in permanent serious visual impairment.

21 Opinion 2. The sutured wound had the appearance of a laceration, due to the application of blunt trauma to the region causing the skin to split: it had the appearance of a relatively recent wound and could have occurred within the time frame of the incident it is not possible to state more precisely the exact cause of this wound, and in particular I am unable to differentiate between a fall onto the pavement versus a blow with a baseball bat as the cause. The doctor who initially treated Mr Smith and sutured his wound may be able to assist you further with this inquiry this wound should heal, leaving a scar that will be barely visible under the hair. Dr Mary Nicole Brown MBBS, FRACGP

22 I hereby acknowledge that this statement is true and correct and I make it in the belief that a person making a false statement in the circumstances is liable to the penalties of perjury. Mary N Brown Acknowledgement taken and signature witnessed by me at 3 pm, On 6th February 2004 at Smithtown Signature P Plodd _____________________________________ Name Peter Plodd______________________________________ Rank/No D/S/C ________________________________

23 Medical Report (for Child Protection) Letterhead +/- logo Date For whom Title Re – Name – Date of birth – Identifier – (NOT ADDRESS) Who you are – full name, – qualifications – professional address – current position/title – experience in the field When and where you had contact with the child Who else was there Who provided consent and what consent was for All sources of information

24 Medical Report - Children Who said what – Verbatim** – New paragraph per person – Allegations Headings optional Number paragraphs optional Content – Allegation 1st – Concerning features Delay in presentation History changes over time Differing histories by individuals – Paediatric medical history Allegations – What? – Who? – Where? – When? History – Specific related to allegation chronology – Nonspecific past medical and developmental concerns child care practices genogram

25 Medical Report - Children Examination - general – Demeanour, affect – Cooperation – Clothing – Measurements and percentiles – Skin – Orifices Mouth, ears, eyes – Systems – Pattern recognition Examination - specific – Injuries Obvious Search – Documentation Site Size Shape Surrounds Colour Contour Contents Edge (pain, discharge, movement)

26 Medical Report - Children Investigations – What? – When? – Who interpreted findings? – Implication(s) of findings? – +/- sensitivity and specificity of the test (rarely) Consultations: Quote – Who ? – What opinion ?

27 Medical Report - Children Opinion – clear heading Summarise allegations Summarise examination findings How the 2 relate to each other What you believe is the most likely cause for the child’s condition WHY? Other conditions to consider – Why they are or are not likely to be the cause of the child’s condition – References

28 Medical Report - Children Limitations of your opinion Qualifiers Jurat Evidence on which your opinion is based – References Limit / permit the use or distribution of the report? (court documents = public records) CHECK IT for – Typing errors – Grammatical errors, sloppy language, imprecise language, misleading language – Errors of fact – Errors of judgement – Opinion = accurate and complete Sign it Send it (cc to all the relevant professionals) Record in child’s record when report sent to whom

29

30 Lawyer: "What happened then?" Witness: "He told me, he says, 'I have to kill you because you can identify me.'" Lawyer: "Did he kill you?" Witness: "No." Courtroom Quotes Lawyer: "How far apart were the vehicles at the time of the collision?" Lawyer: "Now, Mrs. Johnson, how was your first marriage terminated?" Witness: "By death." Lawyer: "And by whose death was it terminated?" Lawyer: "I show you Exhibit 3 and ask you if you recognize that picture." Witness: "That's me." Lawyer: "Were you present when that picture was taken?"

31 OPINIONS: where do they come from? Values Bias (+/- motivational error) + Knowledge + Reasoning (+/- cognitive error) -> Conclusions = Opinion (+/- judgement error)

32 Opinion in medico-legal report Should address matters related to Cause of injury – Accident or assault ……& neglect – Mechanism (nature of insult & forces) – Certainty / probability Timing of injury Circumstances surrounding injury Evidence base for your conclusions Confidence in diagnosis /probability /likelihood Treatment required Outcomes (note if potentially life-threatening)

33 Cause of injury Possible phrases to use Indicative of.. Indicates that… Has been caused by … Suggestive of… suggests that… – Is likely to have been caused by… – Probably has… Raises concern about … Could have been caused by.. It is possible that.. Not able to determine the cause based on the appearance alone Is unlikely to have been caused by… Is highly unlikely to have been caused by … Almost certainly has not been caused by… Cannot have been caused by…

34 Unpopular phrases (not wrong) Consistent with… In keeping with … As she alleged…. Within the alleged time frame…. Could have been caused by A.. or B.. or C.. Nonspecific (both an accidental cause and assault is possible )

35 Time of injury Minutes to hours Hours to days Days to weeks Weeks to months Months to years

36 CAUTION: Few doctors understand statistics! Single event probabilities Eg Prozac has a 30-50% chance of sexual dysfunction Many doctors do NOT understand risk for their patient Solution to improve understanding of relative risk : Reference class or only use frequency statement Conditional probabilities Sensitivity Specificity Positive predictive value Relative risks BMJ 2003;327: (27 September), doi: /bmj Education and debate: Simple tools for understanding risks: from innumeracy to insight Gerd Gigerenzer, director 1, Adrian Edwards, reader 2

37 Statistics in Court Appropriately reference current knowledge and explain consensus Must understand Baysian probability Always apply statistics appropriately An Intuitive Explanation of Bayes' Theorem Eliezer S. Yudkowsky S. Yudkowsky

38 Sally Clark case Sir Roy Meadow -2 children in 1 family dying of SIDS = 1 in 73,000,000 – Probability of 1 in…X probability of 1 in… Assumed independence Other medical causes of multiple deaths not considered Ignored conditional probability /probability of multiple homicides not considered He was possession of manuscript about research on 2 or more deaths in one family (probability much less than 1 in 73 million)

39 BEWARE Prosecutor’s fallacy Defense Attorney’s fallacy Conditional probability fallacy / confusion of the inverse Base rate fallacy GET IT RIGHT OR DON’T GO THERE……

40 Prosecutors fallacy A piece of evidence that would implicate a random person in the population = probability that it implicates the defendant. Eg DNA evidence (and Meadow’s law) 1 in 3 million chance that a random person has this particular DNA profile is (wrongly) attributed / equated to a 1 in 3 million chance that this person is innocent

41 Defense attorney’s fallacy 1 in a million chance of a match. Test 10 million, ->10 matches. The defendant is merely one of the 10. Thus my client has 90% chance of innocence! Eg OJ Simpsons blood at crime scene matched 1 in 400 other LA citizens. In a LA football stadium a number of other “matches” possible

42 Conditional probability P(I|E) = P(E|I ) x P(I) / P(E) P (I |E) = probability of innocence given the evidence = P (E|I) probability of false positive TIMES Probability of Innocence independent of test result Divided by Probability that evidence would be observed regardless of innocence

43 Base rate fallacy Prior probability = base rate probability CIA example: Vietnam war US pilot identifies strafing aircraft as Cambodian Under experimental conditions (50% Cambodian 50% Vietnamese) pilot correct 80% erred 20% BUT field conditions : 85% of aircraft are Vietnamese, only 15% are Cambodian Thus 68 of 85 Vietnamese aircraft (80%) correctly identified, and 17 incorrectly identified as Cambodian And 12 of 15 Cambodian aircraft correctly identified ( 3 incorrectly identified as Vietnamese 17 incorrectly identified as Cambodian (actually Vietnamese) + 12 correctly identified as Cambodian = 29 Therefore probability he is correct is actually 12 / 29 = 41% of intelligence/csi-publications/book

44 Examples of Cognitive Bias People apply a high evidential standard ("Must I believe this?") to unpalatable ideas & a low standard ("Can I believe this?") to preferred ideas Excessive drive for consistency is another potential source of bias because it may prevent people from neutrally evaluating new, surprising information People can only focus on one thought at a time, so find it difficult to test alternative hypotheses in parallel. People can overlook challenges to their existing beliefs

45 Hidden assumptions assume shared values and beliefs, therefore AVOID these words Disclosure Assumes the statements are factual “He disclosed that she hurt him” Victim Assumes something bad happened to this person “The victim wept after the alleged assault” Offence Assumes crime has been committed “She said that the perpetrator raped her”

46 Assumptions and ‘medical truisms’ If you hear hoof-beats think of horses not zebras – Common things occur commonly (and conversely…) Occham’s razor The rule of parsimony (all symptoms are due to one complaint) If a test result surprises you, repeat the test before taking action If a test result is unlikely to change the management of a patient, don’t do the test. Rare manifestations of common diseases > common manifestations of rare diseases 1 st priority in DDX = diseases you cannot afford to miss Values and bias – eg, People are inherently ‘good’ sometimes poverty makes people do bad things… How useful are these things when evaluating a particular child’s situation?

47 Dos and don’ts for doctors Do be quiet and listen Do diligently record verbatim comments Do explore all possible scenarios Do seek detail about injury mechanism Do demonstrate your reasoning Don’t close your mind to any possibility Don’t hide anything Don’t ever suggest to caregivers /others a possible explanation for an injury (Don’t speculate)

48 Tips Don’t say or write ANYTHING that you would not defend under cross-examination in court. Don’t hesitate to seek advice (early) Don’t allow yourself to be bullied or influenced to provide a biased opinion in a report Always question your own judgement and review the evidence on which your opinion is based If in doubt, perhaps more particularly when you are in NO doubt…have a colleague review & edit report


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