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Lawyers targeted in row over expert witness

|Written By Robert Todd

A man who says he lost custody of his children due to the testimony of a Whitby, Ont., man who allegedly falsely represented himself as a doctor of psychology in court now wants to hold lawyers and the legal system to account for his ordeal.

“I think the lawyers have to be held to a higher standard,” says the man, suggesting counsel need to do a better job of screening expert witnesses. “From what I’m seeing, there’s no accountability for lawyers.”

The man, who can’t be identified, is among a group of alleged victims working with Toronto lawyer George Callahan to investigate the viability of a class action lawsuit after charges were laid against a Whitby man, Gregory Carter, whom police claim falsely identified himself as a doctor of psychology in family court.

Callahan says he has spoken to about eight people regarding their experiences with Carter, who is classified as a psychological associate by the College of Psychologists of Ontario. “And the number is rising,” he adds.

“The commonality is, first of all, Gregory Carter; second of all, the impact on custody; third of all, the expense,” says Callahan.

While he has yet to determine the target of such a lawsuit, Callahan suggests it could include two lawyers. He says the civil action might centre on accusations of “a failure to warn.”

Tom Dart, past chairman of the Ontario Bar Association’s family law section, says the allegations Carter faces are “highly unusual.” He adds the charges could have major implications.

“Obviously, this person’s qualifications are called into question, so that kind of challenges all of the evidence he’s put forward to the court and opens up those cases again, I guess, for review,” says Dart.

“From a lawyer’s point of view, I guess it depends on what side you’re on. But if you’re on the side of the Children’s Aid [Society], then naturally you’re very concerned because you’ve been relying on that evidence for the files that you’re handling in addition to going to court and relying on that evidence.

So it becomes pretty devastating for them, similarly for parents, obviously, that have been given the opinions that this gentleman has given.”

According to Durham Regional Police, officers fielded public complaints in November 2009 about a man who said he was a psychologist and referred to himself as a doctor while giving testimony in family court. Police said the man’s evidence led to parents’ loss of custody of their children.

Officers later discovered the man was registered with the College of Psychologists of Ontario as a psychological associate with limits on his practice. Police said the man doesn’t have a doctorate degree recognized by the college.

Carter, 63, faces three charges of fraud, two charges of obstructing justice, and two charges of perjury.

According to Carter’s profile on the college’s web site, he is authorized to practise in the areas of clinical psychology, counselling psychology, and school psychology.

A limitation on his practice listed on the site reads as follows: “That your practice in psychology is not to include the autonomous performance of the controlled act of communicating to a person a diagnosis identifying as the cause of a person’s symptoms, a neuropsychological disorder or a psychologically based psychotic, neurotic or personality disorder. You may perform this controlled act only under supervision of a member of the college authorized to communicate a psychological diagnosis.”

Carter’s profile also includes details of professional disciplinary matters and a referral to the college’s discipline committee. According to the record, Carter faces allegations of professional misconduct following a complaint from an individual identified only as Mr. S.

He accuses Carter of contravening his practice restriction and failing to maintain professional standards by “making misrepresentations about his credentials, authoring a report based on inadequate information, authoring a report that fell below the standard of care of a reasonably prudent psychological associate, and/or contravening one or more of the standards of professional conduct.”

A second complaint from Dr. M. also accuses Carter of contravening his practice restriction and failing to maintain professional standards. In addition, it alleges Carter engaged in an act that members of his profession would find “disgraceful, dishonourable or unprofessional.”

The record doesn’t specify a date for a hearing on the cases. None of the allegations against Carter, either in the disciplinary matters or the criminal charges, have been proven.

A request for comment from Dr. Catherine Yarrow, registrar of the college, wasn’t returned by press time.

Carter also didn’t respond to requests for comment by press time.

Lesley Kendall, a partner at Cunningham Swan Carty Little & Bonham LLP in Kingston, Ont., and a certified specialist in family law, says she collects the curriculum vitae of any psychological expert she relies on in court and typically uses those who have amassed good reputations for their efforts in court.

Kendall says she has never heard of an unqualified expert giving psychological evidence in family court and doesn’t believe stricter protocols are necessary.

“There’s a fairly rigorous process through both professional organizations, whether it’s the law society or the governing bodies that govern psychologists,” she says.

At the end of the day, Kendall says it’s up to the courts to decide if expert evidence is reliable.

“If there’s not a curriculum vitae there and the practical experience that an expert would need to qualify themselves as an expert, the court just won’t accept it,” she says.

Meanwhile, Dart notes that the number of mental-health experts who are willing to testify in court is diminishing. In the family law context, there are very few people who will provide custody and access assessments, he says, adding there’s little to protect such experts against professional negligence proceedings if a litigant is unhappy with their evidence.

“We are losing these experts because, although they’re appointed by the court and they answer to the court, they don’t have the same protection as a judge from lawsuits.”

  • something rotten in the Kingdom of Denmark.

    Karol Karolak P. Eng.
    Let me get it straight: cooking pathology reports in order to "prove" that innocent parents parents killed their kids, making false statements under oath in court in order to throw innocent parents in jail, steal their kids and sell these kids on adoption market is bad and it is a gross miscarrige of justice system therefore Dr. Charles Smith should be stripped of his license to practice medicine,

    On the other hand; cooking psychological assessments, accusing parents of suffering from serious mental disorders, making false statements under oath in court accusing innocent parents that they are danger to their own kids in order to steal these kids and sell them on adoption market is a good thing and this is why "Dr." Gregory Carter should get the same kind of immunity from prosecution for his crooked actions as judges enjoy by legislation and lawyers have by perversion of disciplinary process by the Law Society of Upper Canada.

    There is something very rotten in the Kingdom of Denmark.
  • checking experts is an \"art\"

    Brian
    Callahan recently told the Toronto Sun that checking the qualifications of expert witnesses is an "art" that most lawyers aren't well trained in. Whether or not it is an art - isn't it a duty?
    Whenever a dubious "expert" become the topic of discussion somebody pops up with the "expert chill" warning (previous Law Times article). This time it is Dart warning that holding psychologists accountable for unqualified and/or substandard assessments/testimony will cause all the psychologists to exit child custody/family law practice. If it takes an expert chill to purge the civil litigation system of the obviously unqualified experts like Carter - wouldn't such a chill be a good thing?
    Kendall speaks of collecting (and presumably reviewing) the CVs of expert assessors/psychologists who proffer testimony. But it wouldn't have taken a review of Carter's CV to figure out that he shouldn't have been permitted to proffer a single word of "expert" testimony". And fool can go the the CPO website - click on member search - enter "Carter" - and up pops his registration profile - clearly spelling out his practice restrictions/limitations. While checking CVs is important - a quick search of a medicolegal "expert's" College profile can serve as a sort of pre-screening - to weed out the obviously unqualified - like Carter. So here's the question (ie. elephant in the room) not asked in this column - are the lawyers whose clients were skewered by Carter's unchecked, unchallenged. unqualified "expert" testimony negligent for not have met their duty(?) to check (and challenge whenever appropriate) the qualifications of this opposing expert witness? To say that checking and challenging expert witnesses is an "art" seems like self-serving hyperbole. Given a quick toll-free call to the CPO - or in the alternative - a two-minute web search - would have revealed Carter's practice limitations - it is the lawyers - not the CPO - who own the blame for Carter's having tainted God only knows how many cases. As long as Carter's trail of tainted cases might be - it is unlikely to rival the huge number of cases in which personal injury lawyers have failed to check and challenge unqualified psychologists who have proffered endless testimony in brain injury (mva) cases. Back in 2001 the CPO produced an Advisory for its members which clearly spelled out the qualifications expected of Ontario psychologists who proffer testimony/opinions in brain injury cases. The CPO requires mebers who proffer expert testimony to be authorized to practice in the competency area of neuropsychology. Any lawyer can go to CPO's Member Search - enter the opposing "expert" psychologist's name - and look to see which of the nine competency areas are listed on his/her registration profile. Again, this "art" takes about two minutes. If the opposing expert doesn't include neuropsychology as a declared area of competence, then that lawyer ought to be taking a real hard look at the psychologist who is rendering "neuropsychological" expert opinions about his/her client. Here's the problem - there are literally hundreds of civil litigation cases, both at FSCO and in the Courts, in which psychologists not authorized to practice neuropsychology have proffered unchecked, unchallenged, "expert" testimony in brain injury cases. What's up with that? And again - if it is a duty to ensure that the psychologist who proffers expert neuropsychological testimony against a plaintiff lawyer's brain injured client - is not having done so negligence? If it is - then this brand of negligence is systemic.
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