Legal “Truisims” Exposed?: Custody and Access Reports
Custody and access assessments under Section 30 of the Children’s Law Reform Act of Ontario (“CLRA”) are often a tool called upon by the courts when a true clinical need is required to assist a Justice in making a determination in a custody and access dispute. The requirements set for the “experts” which are retained under Section 30 are, in my personal opinion, vague on many issues. Most notably the conduct of the clinicians whom engage as “experts” from the clinical community. There are currently no tangible guidelines for how their reports are produced, what evidence they can rely upon and what clinical practices and procedures they should follow.
One of the primary factors that any “expert” representing themselves as a clinician (psychiatrist, psychologist, social worker) and providing expert “evidence” and “testimony”, in accordance with assisting the court in determining a child’s “best interests” (Rule 24 of the CLRA), should be a requirement to base their “clinical” opinions on the principals of “evidence based medicine”.
Evidence based medicine in custody and access assessments is something rarely discussed but, a recently discovered paper by Michael A. Saini, PhD, MSW, RSW does delve into this very complex matter.
In his paper, Dr. Saini identifies “evidence based” practices as:
I encourage anyone facing a “report” be it from the Office of the Children’s Lawyer (“OCL”) and/or a Section 30 custody and access evaluator to review Dr. Saini’s paper when reviewing the recommendations made by any “expert” or “professional”.
The key element that these professionals often fail to do is to back-up their recommendations on any cogent, recent and relevant “evidence based medicine”. For example, this may be recommending and/or suggesting that “parental alienation” may be presenting in the matter before the court but without even possibly providing any insight into what "parental alienation" is or for what "theory" they are basising their subjective observation on.
Most clinicians work under a model known as “SOAP” – subjective, objective, assessment and plan when making any determination of a client’s outcome. Custody and access evaluators should be held to the same standards as they are impacting the wellbeing (health) of children. Often, custody and access evaluation “reports” are a mash-up of “subjective” statements which are not grounded in “objective” facts. They are mostly crafted out of hearsay which is subjective information gathered from their clients and collateral witnesses.
More on SOAP Notes: SOAP note - Wikipedia, the free encyclopedia
Most professionals in the medical industry when putting forward an objective finding will cite the reason and back grounding evidence for which their diagnosis and plan of care are based on. The plan is based on the objective facts regarding their client’s health care needs. For some reason, custody and access evaluators whom are often clinicians often do not support their recommendations with any “evidence based medicine”. They often rely upon their “experience” and the “trust” that they have gained with the courts to make broad sweeping statements and recommendations. Some will even cite that the court always goes with what they recommend, that they have done hundreds of these and that is why their opinion is the right one.
In another matter, for which the concept of “truisms” came from, we have seen how these “truisms” can impact these “expert” clinicians and the recommendations they make to the court. If I could warn Justices reading this forum, it would be to be very cautious when reports from clinicians are not properly cited to the clinical best practises (“evidence based medicine”) that they relied upon when providing a recommendation to the court.
Thinking of it from another perspective, the base of “evidence based medicine” is the “jurisprudence” for which clinicians determine better outcomes for their patients. The system of “evidence based medicine” runs parallel to the system of “case law” for which justices rely upon to make orders. Clinicians who do not leverage the “evidence based medicine” (“medical jurisprudence”) should be called to task on how they perform their jobs and arrived at their conclusions.
When a Justice fails to properly apply jurisprudence from case law (and law itself) there is an appeals process. What process is there for a parent whom has gotten a negative report from a “custody and access evaluator” whom has not properly demonstrated their position to the court or that it is not even based on any “medical jurisprudence”?
Case on Point?
Fielding v. Fielding, 2013 ONSC 1458 (CanLII)
Date: 2013-03-08
Docket: FS-12-00375231
URL: CanLII - 2013 ONSC 1458 (CanLII)
Citation: Fielding v. Fielding, 2013 ONSC 1458 (CanLII)
In this evolving matter before the Superior Court the expert testimony is being challenged. A situation of possibly dueling “experts” is evolving. The Applicant is bringing forward an expert to dispute the report and challenge the custody and access evaluator’s reference to “parental alienation” in the assessment report. Opposing party does not want the additional expert to testify but, the justice presiding over the matter observes in paragraph 17 the following (my emphasis added):
Here we see a Justice applying good measures in insuring that the court explores the principals underlying in the custody and access evaluator’s report in which “he does not discuss the theory of or research on parental alienation”.
More custody and access evaluators need to be challenged on the principals and “evidence based medicine” that they relied upon (or possibly did not) in this manner by litigants and especially the courts. When making a recommendation to the courts on custody and access of children, “evaluators” are not just impacting the lives of the children involved but, the parents as well. They have a clinical duty to their governing bodies to act in accordance with medical best practices and this should include evidentiary based medical practices when producing custody and access reports.
Relying upon “truisms” is not sufficient. It should not be allowed by justices and especially not by the clinical governing bodies. It is not what constitutes "good medicine".
Good Luck!
Tayken
Custody and access assessments under Section 30 of the Children’s Law Reform Act of Ontario (“CLRA”) are often a tool called upon by the courts when a true clinical need is required to assist a Justice in making a determination in a custody and access dispute. The requirements set for the “experts” which are retained under Section 30 are, in my personal opinion, vague on many issues. Most notably the conduct of the clinicians whom engage as “experts” from the clinical community. There are currently no tangible guidelines for how their reports are produced, what evidence they can rely upon and what clinical practices and procedures they should follow.
One of the primary factors that any “expert” representing themselves as a clinician (psychiatrist, psychologist, social worker) and providing expert “evidence” and “testimony”, in accordance with assisting the court in determining a child’s “best interests” (Rule 24 of the CLRA), should be a requirement to base their “clinical” opinions on the principals of “evidence based medicine”.
Evidence based medicine in custody and access assessments is something rarely discussed but, a recently discovered paper by Michael A. Saini, PhD, MSW, RSW does delve into this very complex matter.
Evidence Base of Custody and Access Evaluations
By Michael A. Saini, PhD, MSW, RSW
http://www.afccontario.ca/SAINI%20-%...ssessments.pdf
By Michael A. Saini, PhD, MSW, RSW
http://www.afccontario.ca/SAINI%20-%...ssessments.pdf
In his paper, Dr. Saini identifies “evidence based” practices as:
Evidence-based practice was originally defined as ‘‘the conscientious, explicit and judicious use of current evidence in making decisions about the care of individual patients’’ (Sackett, Straus, Richardson, Rosenberg, & Haynes, 1997, p. 71). More specifically, it involves ‘‘integrating individual practice expertise with the best available external evidence from systematic research as well as considering the values and expectations of clients’’ (Gambrill, 1999, p. 346).
The key element that these professionals often fail to do is to back-up their recommendations on any cogent, recent and relevant “evidence based medicine”. For example, this may be recommending and/or suggesting that “parental alienation” may be presenting in the matter before the court but without even possibly providing any insight into what "parental alienation" is or for what "theory" they are basising their subjective observation on.
Most clinicians work under a model known as “SOAP” – subjective, objective, assessment and plan when making any determination of a client’s outcome. Custody and access evaluators should be held to the same standards as they are impacting the wellbeing (health) of children. Often, custody and access evaluation “reports” are a mash-up of “subjective” statements which are not grounded in “objective” facts. They are mostly crafted out of hearsay which is subjective information gathered from their clients and collateral witnesses.
More on SOAP Notes: SOAP note - Wikipedia, the free encyclopedia
Most professionals in the medical industry when putting forward an objective finding will cite the reason and back grounding evidence for which their diagnosis and plan of care are based on. The plan is based on the objective facts regarding their client’s health care needs. For some reason, custody and access evaluators whom are often clinicians often do not support their recommendations with any “evidence based medicine”. They often rely upon their “experience” and the “trust” that they have gained with the courts to make broad sweeping statements and recommendations. Some will even cite that the court always goes with what they recommend, that they have done hundreds of these and that is why their opinion is the right one.
In another matter, for which the concept of “truisms” came from, we have seen how these “truisms” can impact these “expert” clinicians and the recommendations they make to the court. If I could warn Justices reading this forum, it would be to be very cautious when reports from clinicians are not properly cited to the clinical best practises (“evidence based medicine”) that they relied upon when providing a recommendation to the court.
Thinking of it from another perspective, the base of “evidence based medicine” is the “jurisprudence” for which clinicians determine better outcomes for their patients. The system of “evidence based medicine” runs parallel to the system of “case law” for which justices rely upon to make orders. Clinicians who do not leverage the “evidence based medicine” (“medical jurisprudence”) should be called to task on how they perform their jobs and arrived at their conclusions.
When a Justice fails to properly apply jurisprudence from case law (and law itself) there is an appeals process. What process is there for a parent whom has gotten a negative report from a “custody and access evaluator” whom has not properly demonstrated their position to the court or that it is not even based on any “medical jurisprudence”?
Case on Point?
Fielding v. Fielding, 2013 ONSC 1458 (CanLII)
Date: 2013-03-08
Docket: FS-12-00375231
URL: CanLII - 2013 ONSC 1458 (CanLII)
Citation: Fielding v. Fielding, 2013 ONSC 1458 (CanLII)
In this evolving matter before the Superior Court the expert testimony is being challenged. A situation of possibly dueling “experts” is evolving. The Applicant is bringing forward an expert to dispute the report and challenge the custody and access evaluator’s reference to “parental alienation” in the assessment report. Opposing party does not want the additional expert to testify but, the justice presiding over the matter observes in paragraph 17 the following (my emphasis added):
[17] The issue to which the seventeen alienating factors and the eight alienated child behaviours relate is one of strong significance in this case. The facts underlying it are very much in dispute. Dr. Sutton refers to parental alienation in his assessment. He concluded that it was not the main source of the children’s rejection of one or other parent. In his report, he does not discuss the theory of or research on parental alienation. Given the complexity of these issues as manifested here, including varying alignments of one or more children to different parents, I am satisfied that this part of the proposed evidence meets the threshold for necessity.
More custody and access evaluators need to be challenged on the principals and “evidence based medicine” that they relied upon (or possibly did not) in this manner by litigants and especially the courts. When making a recommendation to the courts on custody and access of children, “evaluators” are not just impacting the lives of the children involved but, the parents as well. They have a clinical duty to their governing bodies to act in accordance with medical best practices and this should include evidentiary based medical practices when producing custody and access reports.
Relying upon “truisms” is not sufficient. It should not be allowed by justices and especially not by the clinical governing bodies. It is not what constitutes "good medicine".
Good Luck!
Tayken
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