When Can a Clinical Neuropsychologist Assist in a Clinical Negligence Claim?

Clinical negligence cases involving neurological injury can present a particular evidential challenge. Medical records and neurological investigations may establish that an event occurred, but they do not necessarily explain how any resulting brain dysfunction has affected the individual’s thinking, behaviour and day-to-day functioning.

This is where evidence from a clinical neuropsychologist may be valuable.

A neuropsychological assessment can provide an objective evaluation of cognitive functioning and help address questions about the nature and extent of impairment, its likely causes, prognosis and functional consequences. In the context of litigation, however, the role of the clinical neuropsychologist is not to establish that negligence occurred or to advocate for either party. The expert provides an independent opinion on matters falling within their own area of expertise.

What does a clinical neuropsychologist assess?

Clinical neuropsychology concerns the relationship between brain function, cognition, behaviour and emotion. A medico-legal neuropsychological assessment will usually combine several sources of information rather than relying on test scores in isolation.

Depending on the issues in the case, an assessment may examine areas including:

• attention and concentration;

• memory and learning;

• processing speed;

• language;

• executive functioning, such as planning, organisation and problem-solving;

• visuospatial functioning;

• emotional and behavioural change; and

• the effect of cognitive difficulties upon everyday activities, employment and independence.

The assessment will ordinarily also take account of the individual’s clinical history, relevant medical and other records, reported symptoms, observed presentation and factors that may influence cognitive performance.

This allows the clinical neuropsychologist to consider not simply whether test scores are reduced, but what the overall pattern of evidence means in the context of that particular individual.

When might neuropsychological evidence be relevant in clinical negligence?

There is no need for a clinical neuropsychologist in every clinical negligence claim involving a neurological diagnosis.

Their evidence is more likely to be useful when the alleged injury raises a genuine question about cognitive, behavioural or psychological consequences.

Examples might include cases concerning:

• delayed diagnosis or treatment of stroke;

• hypoxic or other acquired brain injury;

• neurological injury associated with surgery or another medical procedure;

• delayed recognition or treatment of a neurological condition;

• complications resulting in cerebral injury; or

• cases in which the extent or cause of reported cognitive impairment is disputed.

The appropriate expert will depend upon the questions that need to be answered. A neurologist, neuroradiologist, neurosurgeon or another medical expert may be required to address diagnosis, mechanism of injury or particular questions of medical causation. A clinical neuropsychologist addresses the aspects falling within neuropsychological expertise.

That distinction can be particularly important in complex clinical negligence litigation, where several expert disciplines may contribute different parts of the evidential picture.

Neuropsychology and causation

One of the more difficult questions in medico-legal neuropsychology is often not simply whether somebody has cognitive difficulties, but why.

A claimant may have a documented neurological event while also having other factors capable of affecting cognitive performance. These could include pre-existing difficulties, psychiatric symptoms, pain, fatigue, medication, sleep disturbance or subsequent medical events.

Conversely, significant functional difficulties may exist even where conventional investigations do not provide a straightforward explanation for everything the individual reports.

A neuropsychologist can consider the pattern of cognitive findings alongside the wider clinical evidence and provide an opinion within their expertise about the extent to which the presentation is consistent with the neurological injury under consideration.

Importantly, that opinion may strengthen, qualify or challenge a proposed explanation.

Expert evidence under CPR Part 35 must be independent: the expert's overriding duty is to the court, and Practice Direction 35 requires expert opinion to be objective and uninfluenced by the pressures of litigation.

Establishing the extent of cognitive impairment

Another important role for neuropsychological evidence is determining the nature and severity of any persisting cognitive impairment.

Two individuals with apparently similar neurological injuries can experience very different outcomes. Difficulties may also be subtle.

A person may, for example, communicate fluently and appear relatively unaffected during a brief consultation while experiencing significant difficulty with new learning, divided attention, planning or managing complex information.

Structured neuropsychological assessment can help identify such patterns and consider their clinical significance.

Equally, assessment may provide evidence that reported difficulties are less extensive than anticipated or are unlikely to be explained by neurological injury alone. Independence is crucial in either direction.

What can neuropsychological evidence say about functional impact?

For solicitors, the significance of a cognitive deficit often lies in what it means outside the consulting room.

Depending upon the issues within the expert's remit, neuropsychological evidence may assist in understanding the implications of cognitive change for areas such as:

• returning to previous employment;

• learning or retaining new information;

• organising and completing complex tasks;

• managing appointments and routines;

• coping with competing demands;

• independent living;

• managing finances and other important decisions; or

• the need for compensatory strategies, rehabilitation or support.

The neuropsychological findings may therefore form part of the wider evidence used to understand prognosis, rehabilitation requirements and future functional needs.

What about capacity?

Some clinical negligence cases also give rise to a separate question about decision-making capacity.

Cognitive impairment does not, by itself, establish that somebody lacks capacity. Capacity questions are decision-specific and require careful consideration of the relevant legal framework.

Where appropriate and within the terms of instruction, neuropsychological assessment can nevertheless provide important evidence about the cognitive abilities underlying the person's ability to understand, retain, use or weigh relevant information.

Litigation capacity or other specific capacity questions should therefore be identified expressly in the letter of instruction rather than assumed to form part of a general neuropsychological assessment.

When should a solicitor consider instructing a clinical neuropsychologist?

A clinical neuropsychologist may be worth considering where there is an unresolved question such as:

• Has the alleged neurological injury resulted in measurable cognitive impairment?

• Are the reported cognitive difficulties consistent with the neurological evidence?

• Could other factors account for some or all of the presentation?

• What is the likely prognosis for cognitive recovery or continuing impairment?

• How do the identified difficulties affect everyday functioning and work?

• Are there neuropsychological issues relevant to a particular question of capacity?

Identifying the precise issue before instruction is valuable. CPR Part 35 provides that expert evidence should be restricted to evidence reasonably required to resolve the proceedings, while HCPC standards require practitioner psychologists to work within the limits of their knowledge and skills.

Choosing the appropriate neuropsychology expert

The terms clinical psychologist and clinical neuropsychologist are not interchangeable.

Clinical neuropsychology involves additional specialist expertise in assessing the relationship between neurological conditions and cognitive, behavioural and emotional functioning. The British Psychological Society describes its Specialist Register of Clinical Neuropsychologists as the gold standard for clinicians practising in neuropsychology.

For a medico-legal instruction, solicitors should also consider the expert's experience of the relevant type of neurological presentation and of providing evidence within civil proceedings.

An expert's professional obligations continue alongside their duties under the Civil Procedure Rules. HCPC standards require practitioner psychologists to practise within their scope of competence, while CPR Practice Direction 35 requires experts to identify matters falling outside their expertise and to provide objective and unbiased opinions rather than act as advocates.

Independent neuropsychological evidence in clinical negligence cases

The purpose of a medico-legal neuropsychological assessment is ultimately to help clarify the evidence.

In an appropriate case, a clinical neuropsychologist can help distinguish between different possible explanations for cognitive difficulties, establish the nature and extent of impairment, consider prognosis and explain the likely implications for everyday functioning.

Sometimes that evidence will support a party's position. Sometimes it will not. That independence is fundamental to the expert's role.

Cornwall Psychologist 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 Victoria Hunkin is a Consultant Clinical Neuropsychologist, HCPC-registered practitioner psychologist and member of the British Psychological Society's Specialist Register of Clinical Neuropsychologists.

For information about instructions, areas of expertise and medico-legal neuropsychological assessments, see our neuropsychology expert-witness services for solicitors.