What Information Does a Clinical Neuropsychologist Need for a Medico-Legal Assessment?

A medico-legal neuropsychological assessment is rarely based on test results alone. The clinical neuropsychologist is usually being asked to consider a much broader question: whether an individual has experienced a change in cognitive functioning, how that change relates to the neurological and psychological evidence, what other factors may be relevant, and what the likely consequences are for everyday life.

To do that well, the expert needs to understand the person’s functioning before and after the relevant event, the nature of the alleged injury, the wider medical context and the particular questions arising in the litigation.

The amount of information required will vary from case to case. A straightforward instruction may need relatively little beyond the core medical records. A complex or disputed presentation may require a much broader evidential picture.

The alleged neurological event

The starting point is usually the event said to have caused the neuropsychological difficulties.

Depending on the case, this may be:

• a traumatic brain injury;

• stroke;

• hypoxic or anoxic brain injury;

• complications of surgery;

• delayed diagnosis or treatment of a neurological condition;

• another acquired brain injury; or

• a more complex presentation in which the relationship between symptoms and neurological injury is itself disputed.

The neuropsychologist will usually want to understand what happened at the time, what was recorded clinically, what treatment was provided and how the person’s presentation developed afterwards.

Contemporaneous records can be particularly important. Recollections of an accident, loss of consciousness or post-traumatic amnesia may change over time, while emergency, ambulance and hospital records can provide useful evidence about the individual’s presentation close to the event.

The purpose is not simply to establish that an injury occurred. It is to understand the neurological context in which any subsequent cognitive findings need to be interpreted.

Relevant medical records

Medical records provide the broader clinical framework for the assessment.

Depending on the issues in the case, useful material may include:

• ambulance and emergency department records;

• acute hospital records;

• neurology and neurosurgical records;

• rehabilitation records;

• neuroimaging reports;

• GP records;

• psychiatric or psychological records;

• pain-management records; and

• records relating to subsequent neurological or medical events.

Not every record is equally important in every case.

In some assessments, the acute neurological records may be central. In others, the most important information may concern a longstanding psychiatric history, chronic pain, medication, sleep disturbance or another factor capable of affecting cognitive functioning.

Neuropsychological interpretation involves considering these factors together rather than attributing every reduced test score automatically to neurological injury.

Information about pre-injury functioning

One of the most important questions in neuropsychology is often not simply “How is this person functioning now?” but “Has their functioning changed?” That requires some understanding of the likely pre-injury baseline.

Useful information may include:

• educational history;

• qualifications;

• occupational history;

• previous level of independence;

• previous neurological conditions or injuries;

• developmental or learning difficulties;

• psychiatric history; and

• any previous concerns about memory, attention or executive functioning.

In many cases, interview history and ordinary medical records provide sufficient background.

Where the level of previous ability is particularly important or disputed, additional evidence can sometimes help. Educational records, previous occupational assessments or earlier cognitive testing may provide useful context.

This is especially relevant where somebody had a high level of premorbid functioning. A person may continue to achieve scores within the broadly average range while nevertheless having experienced a meaningful decline from their previous level of ability.

Conversely, longstanding difficulties may be relevant when considering whether current findings represent a new neurological change.

Evidence about change in everyday life

Neuropsychological tests examine particular aspects of cognitive functioning under structured conditions. They do not, by themselves, describe everything that happens in daily life.

Information about functional change can therefore be very valuable.

This may include evidence about changes in:

• employment;

• organisation and planning;

• memory for appointments or conversations;

• ability to manage competing demands;

• household responsibilities;

• finances;

• social functioning;

• independence;

• fatigue and cognitive stamina; or

• behaviour and emotional regulation.

Sometimes the individual's own account provides a clear picture. In other cases, accounts from family members, employers, rehabilitation professionals or case managers may add useful information.

The relationship between subjective symptoms, observed functioning and formal cognitive findings is itself often clinically informative.

A person may report substantial cognitive difficulties but perform well on formal testing. Alternatively, significant deficits may be identified even though the individual has limited awareness of their difficulties.

Both patterns require interpretation rather than assumption.

Existing expert evidence

In more complex cases, the clinical neuropsychologist will often be working alongside experts from other disciplines.

Relevant reports may include opinions from:

• neurologists;

• neurosurgeons;

• neuroradiologists;

• psychiatrists;

• rehabilitation physicians;

• pain specialists;

• occupational therapists; or

• other psychologists or neuropsychologists.

These reports can help define the medical issues that sit around the neuropsychological opinion.

For example, a neurologist may address the likely mechanism or severity of a neurological injury. A neuroradiologist may interpret imaging findings. A psychiatrist may provide an opinion on psychiatric diagnosis.

The clinical neuropsychologist can then consider the cognitive, behavioural and functional evidence within that wider clinical context.

This is particularly important where expert opinions differ. The neuropsychologist should be aware of those differences rather than inadvertently proceeding on the basis that one disputed interpretation is established.

Psychological and psychiatric factors

Cognitive symptoms do not occur in isolation. Depression, anxiety, post-traumatic stress symptoms, pain, fatigue, disrupted sleep and medication can all affect attention, memory, processing speed and executive functioning.

That does not mean that cognitive difficulties are necessarily “psychological” rather than neurological. Nor does the presence of neurological injury mean that psychological factors can safely be ignored. The task is often to consider how several factors interact.

A useful neuropsychological opinion therefore requires access to relevant information about psychological and psychiatric history, treatment and current symptoms where these are material to the presentation.

In some cases, the interaction between neurological and psychological factors may be more important than attempting to assign every symptom exclusively to one category.

Previous neuropsychological or cognitive testing

Earlier testing can be particularly valuable where it exists.

It may help show:

• whether cognitive difficulties pre-dated the index event;

• whether functioning has improved or deteriorated over time;

• whether there has been a consistent pattern across assessments; or

• whether previous conclusions differ from the current presentation.

However, repeat testing also requires care. Performance on some measures can be affected by familiarity or practice effects, and different assessments may have used different tests or methodologies.

For that reason, previous reports and, where available, sufficiently detailed test information are more useful than isolated references to somebody having previously “passed” or “failed” a cognitive assessment.

Information about work and education

Occupational and educational information can be useful for two distinct reasons. First, it can help estimate the individual's likely level of functioning before the injury. Second, it can provide evidence about the practical consequences of any subsequent cognitive change.

Where work is an important issue in the litigation, useful information may include:

• the cognitive demands of the pre-injury role;

• subsequent attempts to return to work;

• changes in duties;

• reduced hours;

• performance concerns;

• occupational health involvement; or

• reasons why a return to the previous role was unsuccessful.

The implications of a mild executive or memory difficulty can be very different for somebody undertaking highly complex professional work than for somebody whose role places fewer demands on those particular abilities.

Functional significance therefore cannot always be inferred from the severity of a test score alone.

Rehabilitation and treatment records

Rehabilitation records can provide particularly helpful longitudinal evidence. They may show how the individual functions over time, which problems have been observed repeatedly, which strategies have been tried and whether improvement has occurred.

Relevant material might come from:

• neurorehabilitation services;

• occupational therapy;

• speech and language therapy;

• psychology;

• physiotherapy;

• case management; or

• vocational rehabilitation.

These records can sometimes provide a more detailed picture of everyday cognitive functioning than is available from a single clinical appointment.

They can also help distinguish difficulties that have remained stable from those that have changed with treatment, recovery or environmental demands.

What if some records are unavailable?

A complete set of records is not always available before assessment. That does not necessarily prevent a neuropsychological opinion from being provided.

What matters is whether the missing information is material to the questions being asked.

In some cases, the expert may be able to reach a clear opinion despite gaps in the evidence. In others, an important conclusion may need to be qualified until particular records or another expert opinion become available.

The report should make clear the evidence upon which the opinion is based and identify any material limitations.

Occasionally, reviewing the available information will also reveal that another discipline needs to address an issue before a firm neuropsychological conclusion can be reached.

Capacity questions require separate consideration

A neuropsychological assessment does not automatically include an assessment of capacity.

Questions about litigation capacity, capacity to manage property and financial affairs or another specific decision require separate consideration.

Cognitive test findings may be highly relevant to capacity, but cognitive impairment alone does not establish that a person lacks capacity.

Where capacity is part of the instruction, it is therefore important that the particular capacity question is identified.

The neuropsychologist can then consider the cognitive abilities relevant to that decision alongside the appropriate legal framework and other available evidence.

Why neuropsychological testing is only part of the assessment

Standardised cognitive testing is an important component of clinical neuropsychology, but it is not the whole assessment.

Test results have to be interpreted in the context of:

• the neurological evidence;

• likely pre-injury ability;

• psychological and psychiatric factors;

• pain and fatigue;

• medication;

• behaviour during assessment;

• everyday functioning;

• consistency across different sources of evidence; and

• the reliability and validity of the assessment findings.

The central question is rarely whether a particular test score falls above or below a numerical threshold.

The expert is trying to understand what the overall pattern of evidence means for this individual.

That is why the wider information provided with a medico-legal instruction can be as important as the cognitive testing undertaken during the assessment itself.

The information required depends on the question

There is no universal document list for every medico-legal neuropsychological assessment. A case concerning severe acquired brain injury with extensive rehabilitation may require very different evidence from one involving subtle cognitive symptoms after a mild traumatic brain injury.

A clinical negligence case may raise different questions again, particularly where the alleged neurological consequences of delayed diagnosis or treatment are being considered. The most useful material is therefore the information that helps answer the specific questions arising in the case. Where the evidence is extensive, the clinical neuropsychologist can identify what is relevant to the opinion and where further information may be required.

Building a reliable neuropsychological opinion

A medico-legal neuropsychological assessment brings together several forms of evidence.

The clinical interview and formal cognitive testing are central, but they gain meaning from the wider clinical and functional context.

Medical records help establish what happened. Background information helps estimate previous functioning. Expert and rehabilitation evidence place the findings in context. Accounts of everyday life help establish whether identified cognitive difficulties have meaningful functional consequences.

Taken together, these sources allow the clinical neuropsychologist to provide an independent opinion about the nature and extent of any cognitive impairment, the factors contributing to the presentation, prognosis and likely functional implications.

Dr Vikki Hunkin provides independent clinical neuropsychology expert-witness assessments for solicitors acting for claimants and defendants in personal injury and clinical negligence proceedings across England and Wales.

Dr Vikki Hunkin is a Consultant Clinical Neuropsychologist, HCPC-registered Practitioner Psychologist and member of the British Psychological Society's Specialist Register of Clinical Neuropsychologists.

For further information about direct instructions and medico-legal neuropsychological assessment, see our clinical neuropsychology expert-witness services for solicitors.