Lai v. Henry, 2013 ABQB 696

Court of Queen ’ s Bench of Alberta Citation: Lai v. Henry, 2013 ABQB 696 Date: 20131128 Docket: 1203 02753 Registry: Edmonton Between: Li Lai Plaintiff - and - Terril Henry and Ian Henry Defendants _ ________________________________________ ______________ Reasons for Judgment of L.A. Smart , Master in Chambers _________________________________________ ______________ Introduction [ 1 ] The Plaintiff Lai ("Lai") was struck by the Defendants’ vehicle while walking outside of West Edmonton Mall and has allegedly suffered serious physical and psychological injuries.

The Defendants apply to have Lai undergo a psychological evaluation before Dr. Roger Gervais (Dr. Gervais) pursuant to rule 5.41. Lai has agreed to attend, but wishes to have it videotaped as authorized by rule 5.42(1)(b). The Defendants have refused, citing Dr. Gervais’ unwillingness to have any form of video or other recording device present. In hopes of avoiding the necessity of a court application, Lai agreed to limit the presence of a videographer to the interview portion of the assessment only but Dr. Gervais still declines to conduct the examination with that constraint. The parties, including Dr.

Gervais, agree that an interpreter will be present at the examination regardless as Lai does not speak English. [ 2 ] Dr. Gervais refused to conduct the psychological assessment in the presence of any Interested or Involved Third Party Observer (ITPO) because of ethical and professional reasons.

He has cited the Canadian College of Psychologists (CPA) Policy Statement (the "Policy") and the Alberta College of Psychologists Practice Bulletin (the "Bulletin"), which each advocate against the involvement of ITPO's in psychological assessments. [ 3 ] The sole issue as framed by Lai's counsel is whether the Plaintiff must submit to an examination by a psychologist who declines to have a videographer present for the examination. [ 4 ] The relevant Rules are as follows: Rule 5.3

(1) The Court may modify or waive any right or power under a rule in this Part or make any order warranted in the circumstances if: a. a person acts or threatens to act in a manner that is vexatious, evasive, abusive, oppressive, improper or tediously lengthy, or b. the expense, delay, danger or difficulty in complying with a rule would be grossly disproportionate to the likely benefit. Rule 5.41

(1) The parties may agree that the mental or physical condition of a person is at issue in an action and agree on a health care professional to conduct a medical examination.

(2) On application, the Court may in an action in which the mental or physical condition of a person is at issue do either or both of the following: a. order that a person submit to a mental or physical medical examination; b. appoint a health care professional to conduct a medical examination.

(3) The Court may order a second or further medical examination by a health care professional.

(4) If the plaintiff has been the subject of a medical examination by a health care professional of the plaintiff’s choice who will or may be proffered as an expert, the Court may order that the plaintiff be the subject of a medical examination by one or more health care professionals of the defendant’s choice Rule 5.42

(1) Unless otherwise ordered by the Court, a person who is to be the subject of a medical examination by a health care professional may elect to do one or more of the following: a. nominate a health care professional to be present during the medical examination; b. videotape the medical examination; c make a word-for-word recording of the medical examination.

(2) The Court may a. define or limit the presence or role of the nominated health care professional, b. direct that any part of the medical examination, including any standardized tests, not be recorded, and c. otherwise provide direction as to the conduct of the medical examination. Rule 5.43

(4) The videotape or recording a. may be shown or played at trial only with the Court’s permission; and b. may only be used to verify events at the medical examination. Argument [ 5 ] The CPA Policy defines involved third parties as: Involved third parties are those who, directly or indirectly, have some stake in the outcome of an examination of a particular plaintiff in

civil litigation. This stake may derive from a legal, financial, family, social, or other relationship or benefit. Involved parties may or may not be known or familiar to the plaintiff patient. For example, an unfamiliar agent of the plaintiff’s attorney would be deemed an involved party for the purposes of this policy. [ 6 ] Dr. Gervais reads the Policy as advising against the presence of medical nominees as agents for Plaintiff’s counsel, or electronic recording devices, given there is in his view significant potential to detrimentally impact the accuracy and reliability of a psychological assessment.

He also states that including an electronic recording device is a potential conflict with his ethical obligations, in particular, the obligation to take all reasonable steps to prevent the loss of the security of assessment techniques. To further support his position, Dr. Gervais sets out the following in his Affidavit filed in support of the Defendants’ application: 10.

The Policy was developed by the Canadian Psychological Association, at the request of members of the Clinical Neuropsychology Section, to apply to neuropsychological assessments based on policies developed by the American Academy of Clinical Neuropsychology (The Clinical Neuropsychologist, 2001, Vol. 15, No. 4. Pp. 433-439) and the National Academy of Neuropsychology (Archives of Clinical Neuropsychology, 2000, Vol. 15, No. 5. Pp. 379-380), but as noted in the Policy, is equally applicable to any forensic and similar psychological assessment situation. 11.

The presence of an interested third party observer including the electronic recording device, as requested by counsel for the Plaintiff, presents such a compromising influence on measurement accuracy that I refuse to conduct any assessment with such potentially invalidating conditions for fear that unreliable test results could distort the assessment and, as a result, potentially compromise my opinion based upon that data. 12.

By way of documented empirical evidence, there are numerous published articles and much research on the negative effect caused by a third party observer in a neuropsychological test setting. While the studies focus predominately on the neuropsychological test setting, the findings are equally applicable to any forensic and similar psychological assessment situations like that to which Ms. Lai would be submitted. Attached hereto and marked as Exhibit “C” is one such published

article that summarizes some of the previous research on the effects of third party observers “Effects of parental presence and child characteristics on children’s neuropsychological test performance: Third party observer effect confirmed” from The Clinical Neuropsychologist, 23:1, 118-132, first published June 10, 2009 13.

While the report attached and marked as Exhibit “C” to this affidavit is expressly focused upon the effect of parental presence and child characteristics on children’s neuropsychological test performance, there are introductory comments that expressly address empirical evidence confirming the effect of third party observers, including video recording and audio devices, upon adults in neuropsychological test settings from earlier research.

Starting on the bottom of page 119 through to the middle of page 120, the authors summarize the results of numerous research papers on the topic of third party observers: Recent research has examined the effects of a third party observer (TPO) in this applied context of neuropsychological assessment, generally finding impaired verbal learning and memory performance, with intact motor skills (Binder & Johnson-Greene, 1195; Constantianou, Ashendorf, & McCaffrey, 2002, 2005; Gavett & McCaffrey, 2007; Kehrer, Sanchez, Habif, Rosenbaum, & Townes, 2000; Lynch, 2005; Yantz & McCaffrey, 2005).

TPO presence has also been shown to negatively affect performance on executive function tasks (Horwitz & McCaffrey, 2007; Huguet Galvaing, Monteil & Dumas, 1999, Kehrer et al., 2005. Observers in these studies have included unfamiliar professionals, significant others, and audio and video recording devices. Affect size estimates from these studies are medium for memory tasks and small for motor and attention/executive tasks (Gavett, Lynch, & McCaffrey, 2005).

This research supports critical statements about the presence of third parties during neuropsychological examinations issued by the National Academy of Neuropsychology and the American Academy of Clinical Neuropsychology suggesting that, generally, the presence of a TPO precludes valid

interpretation of test results (Axelrod et al., 2000; Hamsher, Lee & Baron, 2001). All the research that influenced these policy statements was conducted with adults, and primarily college students … 14. Standardized testing was designed to allow a psychologist to arrive at a diagnosis or assess an individual’s cognitive abilities as well as personality and emotional functioning. Standardized psychological testing was not normed with the presence of third party observers or designed to be used with a third party present.

In order to allow the standardized test results to be compared to normative data, every reasonable effort must be made to ensure a controlled testing environment that, as closely as possible reproduces the original testing conditions. The involvement of an interested third party observer is a violation of standardized procedures, which undermines the reliability and accuracy of the standardized test results and compromises the validity of any comparison with normative data.

As such, third party observers should not be allowed in a psychological test environment as to do so would undermine the psychologist’s ability to render a valid and reliable opinion. While notations can be made of any modification or change to the standardized test procedure in any report generated, the validity and weight given to any report generated under those circumstances would have to be questioned. 17.

In addition to the Policy provided by the CPA, a Practice Bulletin has been issued by the College of Alberta Psychologists in the CAP Monitor, Fall 2011 edition, specifically dealing with psychological evaluations and third party observers. The Practice Bulletin quotes from a lengthier

article prepared by R. J. Spelliscy with assistance by J. Braxton Suffield, PhD, R. Psych., entitled “Psychological Evaluations and Third Party Observers.” Of importance, the Practice Bulletin highlights the following: A growing body of empirical evidence and an increasing number of professional and ethical guidelines indicate that the presence of a third party in any assessment should be restricted to circumstances wherein the evaluation could not proceed otherwise (i.e., an interpreter or the parent of a behaviourally disturbed child).

As it is true in all circumstances where the examinee and/or the examination process deviates from the ideal standardized administration, appropriate documentation of such factors and their possible implications should be clearly highlighted. Overall, psychologists should refrain from engaging in TPO assessments citing both ethical criteria and empirical data. Attached hereto and marked as Exhibit “D” to this my Affidavit is a copy of the relevant portion of the The CAP Monitor (pp. 1- 3).

Also attached here to and marked as Exhibit “E” to this my Affidavit is a copy of the article, “Psychological Evaluations and Third Party Observers” referenced above.

[ 7 ] Lai responds by noting that there is nothing in the Policy nor in the Bulletin which even mentions electronic recording devices. Furthermore, the Policy and Bulletin are principally directed at ITPO's and therefore the Policy has less relevance to uninvolved third parties that have no stake in the outcome. The Policy itself recognizes that it is acceptable for uninvolved third parties such as health care professionals, student professionals or technical personnel to be present.

It is argued it is not significantly different for a videographer to be present particularly where the psychologist and the defense counsel have been invited to appoint a videographer of their choosing. Furthermore, Lai would be willing to simply have the camera in the room without the videographer being present. [ 8 ] It is also observed by Lai's counsel that the

article dealing with the “Effects of parent presence…” is presented as authority for Dr. Gervais’ position. Comments with respect to the use of audio and video recording devices comes from the introduction to this

article yet it is those remarks upon which Dr. Gervais chooses to rely. He does not attach the studies from which such a conclusion was said to be drawn. In addition the

article prepared by R.J. Spelliscy and quoted in the Bulletin makes no reference to electronic or recording devices at all. Discussion [ 9 ] Since the hearing of the application I have received a transcript from the decision of Justice Hillier in Powanda v. Langston (June 26, 2013), Edmonton 0803 01218 ( Powanda ). This was a very helpful review of a similar situation also involving the refusal of Dr.

Gervais to proceed with the psychological examination with a nominee present, videotaping or word for word recording. [ 10 ] Under R. 5.42 the onus rests on the Defendant as Applicant to satisfy the court that no conditions ought to be imposed in the circumstances, Nguyen v. Koehn , 2012 ABQB 655 ( Nguyen ). Justice Hillier quite properly distinguishes this circumstance from that which was dealt with by Justice Moreau in ( Nguyen ) where an orthopedic surgeon refused videotaping.

Specifically, he observes: This court, in contrast and in the context of psychological exams, has both a profile of ethical and empirical validity concerns surrounding the refusal as opposed to reluctance or a preference against having a third-party observer. [ 11 ] The Policy Statement from the Canadian Psychological Association has been presented. Its

preamble states that the policy statement “is a public stance on a given issue(

s) and one that serves to guide the decisions and actions of the association”. The specific Policy Statement is entitled 2009-1 The Presence of Involved Third Party Observer in Neuropsychological Assessments . The policy, framed more as a directive, states it is not permissible for involved third parties to be physically or electronically present during a neuropsychological or similar psychological evaluations of a patient or plaintiff.

It goes on to provide a rationale and context for the policy statement supported by the American Academy of Clinical Neuropsychology but states without any apparent study or authority that the applicability can extend to various forensic and similar assessments. Such an extension is then also made to any kind of recording done even when it is only the equipment present. Finally, the policy provides that so-called uninvolved third parties including health-care professionals, student professionals or technical personnel may be present and should be addressed by noting the potential distraction.

Having a piece of recording hardware present strikes me as something analogous to an uninvolved third party and capable of being dealt with by notes. I do not find this aspect of the purported ethical dilemma sufficiently compelling to satisfy the burden of the Defendants. [ 12 ] In Powanda , the Court had the benefit of evidence from the Plaintiff’s treating psychologist and her critique of some of the 64 studies presented by Dr. Gervais and from which it was concluded that third party monitors do negatively affect the vast majority of the outcomes.

It was pointed out that the degree of variance was not dramatic, on occasion it enhanced the outcome and depended on the type of testing. The Court expressed the view that these points were valid but were matters for argument as to weight for purposes of settlement or trial. Ostensibly that observation would be equally applicable to both parties in an action. [ 13 ] Despite the presumptive right of the Plaintiff to some form of monitoring, the Court in Powanda focused on what was described as the entitlement of Defendants to reliable testing according to norms established by the profession.

The reality is that these examinations in the litigation context are not the “norm”. This is not a circumstance where a psychologist is completing a clinical assessment of his patient for diagnostic purposes to develop a treatment strategy. Although these examinations are often described as an Independent Medical Examination (IME) they are anything but independent. These are one shot exercises conducted in adversarial circumstances. The aim of the Defendant is to discredit the claim of the Plaintiff.

Both Plaintiffs and Defendants hire experts with known biases in favour of their position although I hasten to add that I am not suggesting that these biases are other than properly held positions within acceptable standards established by their profession. [ 14 ] Finally, I am not prepared to simply accept Dr. Gervais’ “opinion” that he knows of no experts willing to test with a monitor present as sufficient evidence for the Defendants to resist the Plaintiff’s presumptive right. Although it is some evidence surely the Defendants must make reasonable inquiries as to availability of others.

My view in this regard is influenced by the recent Consent Order presented to me in Motions Court in an unrelated matter which provided for the interview portion of an examination by a neuropsychologist to be monitored by videotaping. As often observed by Master Funduk, “the court does not exist in a vacuum”. Conclusion [ 15 ] The Plaintiff wishes to have the interview portion of the Defendants’ expert examination videotaped. The Defendants’ expert will not conduct the examination if videotaping is to be done based on ethical concerns and possible effects on the testing.

I am mindful that the court must in all cases carefully examine these concerns and as observed in Powanda , more so, when dealing with psychological examinations. The onus however is on the Defendants to establish that the presumptive right of the Plaintiff ought not to be recognized. The studies presented to support the Defendants’ position are primarily related to neuropsychological testing. Applying the reasoning to other types of testing appears to be a logical extension even though not supported in this application by studies supporting it.

However, to then extend it to apply to any kind of recording especially where only equipment is present in my view is too far a reach. The studies presented in Powanda indicated that although the presence of an IPTA may have a negative affect it was not dramatic. The Defendants’

expert can address that as part of his report through notation and otherwise as contemplated when Uninvolved PTAs are present. As noted in Powanda, these are matters for argument as to weight at trial. [ 16 ] Regardless, these circumstances are readily distinguishable from Powanda . Here there must be an interpreter present albeit considered a necessary third party under the CPA policy and therefore acceptable. The “norm” desired for testing has already been compromised and no doubt will be noted as suggested by policy.

The Plaintiff only requests the interview portion of the examination to be videotaped and has agreed that the videographer will simply set up the equipment and will not be physically present in the room. The actual testing component would proceed without the third party physically or electronically present minimizing the negative impacts on the normative circumstances required by the Defendants’ expert.

This also addresses any ethical concern that certain testing techniques might be made known to others outside the profession if videotaping were permitted. [ 17 ] Having concluded that the Plaintiff is entitled to have a videographer present for the interview portion of the examination, the application of the Defendants is dismissed. Dated at the City of Edmonton, Alberta this 28 th day of November, 2013. L.A. Smart M.C.C.Q.B.A. Appearances: Norm Assiff Chadi & Company for the Plaintiff Jeffrey Sermet Bryan & Company for the Defendants