Memory and the Law Group

Memory and the Law – a dereliction of duty – Part 2.

Peter Harvey posts…

After a nudge –  I had no acknowledgement of my email from any of the recipients – a response was received from the BPS Director of Knowledge and Insight [sic]. This confirmed the fact that the Group has been disbanded and that the reason for this was that “…the standards of evidence for the report and the need for consensus and a convergence of evidence from experimental work and clinical practice, as defined within the Terms of Reference for the group, could not be met.”.  In response to my query about informing the wider membership I was told “…To date, we have only received two enquires about this issue, including your enquiry, so we have not disseminated a wider statement to members.”. As to any future plans for providing advice to the many professionals (both within psychology and the law) who will need coherent and learned guidance from the one organisation that is in a position to provide it, they will have to access “… a special issue of a relevant journal…” because, rather than reconstitute the group (or even start over or work towards resolving the conflicts) group members are being asked to “…work on a series of articles about memory-based evidence for a special issue of a relevant journal. This would allow for a full and definitive review of the “state of the art” of different aspects of evidence-based memory and allow the space to outline where there were controversies as well as clear consensus.”.  This decision was reached after “… a  constructive and helpful meeting…in January 2021 although the decision to end the work of the group ‘… was made by the Research Board in October 2020.”.

I leave the reader to draw their own conclusions from this, but I for one, believe this to be an extremely serious error of judgement in the BPS’s part and shows an egregious lack of both moral and ethical responsibility.  What follows is my response, sent to the President, Chairs of both the Research and Practice Boards, and the Director of Knowledge and Insight.

Your response leaves me deeply unsatisfied and raises many questions. I preface these observations by emphasising that as a retired clinical health psychologist I have no current involvement in practice or in court work and I have no special interest or involvement in any pressure group. I am interested solely in the integrity and the reputation of the BPS.

  1. The BPS is in a unique position.

There is no other professional or academic organisation in the UK that is better placed to provide an informed evidence-based overview of research in human memory and how it relates to behaviour, both in a laboratory setting and in real-world contexts. No other academic or applied discipline has the historical and current underpinning of research nor does any other professional organisation have such ready access to the wide range of practitioners for whom an informed understanding of human memory is a core element of their practice. Most importantly, psychologists have developed over-arching and integrative models of memory and its various components that allow for the multiplicity of data to be placed within an explanatory framework. This is not to say that others have nothing to say and that their individual knowledge bases, perspectives and experiences are invalid or in way lesser. But psychologists are in the unique position of being able to integrate and synthesise this vast and disparate scholarship and expertise. That is both our gift and our responsibility.

2.  The BPS has a public responsibility.

Under our Charter and Statues we have a set of public responsibilities 

“…to promote the advancement and diffusion of a knowledge of psychology pure and applied…” (Royal Charter, extract from para 3).

It could be argued that the interface between the law and the discipline and profession of psychology is amongst the most important. In the arena of the courtroom, life-and-death decisions are made on the basis of attempts to understand the complexities of human behaviour.  We have a responsibility (statutory, moral and ethical)  to ensure that all those involved in the real-life process of making informed decisions have access to the best possible evidence and data – however incomplete that may be. We cannot renege on that responsibility nor should we.  By refusing to update our guidelines we are abrogating our critical role in providing support and guidance to those who both need it and to which they are entitled.

3.  “Let them read the Journal.”

It is, frankly, astonishing that the fallback position is that the group will “…work on a series of articles about memory-based evidence for a special issue of a relevant journal. This would allow for a full and definitive review of the “state of the art” of different aspects of evidence-based memory and allow the space to outline where there were controversies as well as clear consensus.”. Apart from the inevitable delay that this process will involve it is simply the wrong decision. These data are, one assumes, already out there in the various academic journals – the “new” papers will be summaries of the existing literature brought together under one roof, as it were. Why spent time and energy on re-inventing the wheel? If this were to seen as an acceptable strategy, then why not simply ask the group for an up-to-date list of papers with references and send this out to interested parties?  And what is missing from this piecemeal approach is the integration of these data into explanatory models. The aims and purposes (amongst others) of a document including the word ‘Guidelines’  under the imprimatur of an organisation are to provide (i)a set of standards for currently acceptable practice; (ii) a summary of current knowledge in the field, identifying what is known, what is uncertain (and possibly, what is wrong) together with informed guidance as to the reliability and limitations of these data. It is this latter function that may be of more importance in this case. In the highly contentious area that involves memories of childhood trauma, courts need the best possible information in order to ensure justice is done fairly and equitably for all those involved. By making access to such information significantly more difficult and without the benefit an expert, informed overview, the BPS is actively depriving people of justice. The other, highly significant problem with the BPS’s so-called solution, is that it removes the authority that the organisation gives to a document. If we take your ‘solution’ then what is there to stop stop a variety of ‘expert’ witnesses quoting from a whole range of journals – the status of which is likely to be opaque to the courts (does publication in the BJP trump the JEP?), leaving laypersons in the unenviable position of having to rate the merits of different scientific papers. What seems to have eluded those who made this decisions is that this is not some cosy academic debate in the conference hall – it impacts on people’s lives in a highly significant way.

4.  On the lack of consensus.

Why is consensus critical? I am not sure that any area of science in general and psychology in particular is reducible to a simplistic, definitive, absolutist position that would claim to have everyone’s agreement. No scientific debate is ever closed.  No reputable scientist would say that a debate is shut, that there is no debate to be had anymore. There will always room for doubt and all our knowledge is only ever provisional, awaiting the next new piece of data or new theoretical insight. Elaborating doubt and controversy is surely a sine qua non of a truly scientific approach to knowledge. In the specific setting of memory and the law I would argue that it is absolutely essential that doubts and controversies are given due prominence so that partial and partisan positions can be exposed for what they are. Giving the courts access to the doubts and uncertainties is surely helpful so that each individual case may be judged on their merits. To quote from the 2008 Guidelines

The guidelines and key points should then be taken as they are intended – as guidelines and not absolute statements. Because they are based on widely agreed and acknowledged scientific findings they provide a far more rigorously informed understanding of human memory than that available from commonly held beliefs. In this respect they give courts a much firmer basis for accurate decision-making.

Citing lack of consensus as reason for winding up a group is cowardly and deceitful and does the BPS irreparable harm. It is shameful.

5.  Conflicts of interest?

I note that the Chair of the 2008 Guidelines was Professor Martin Conway. I also note that he is currently a member of the Advisory Board of the British False Memory Society (BFMS) and I understand that he is regularly called as an Expert Witness. Without in any way impugning Professor Conway’s personal or professional integrity, why did the BPS appoint as Chair, someone who could be put in a position where there might be seen to be a conflict of interest? The BFMS is clearly a pressure group espousing a particular view of how memory works – it cannot be said to neutral. Neither is it a professional body in the sense that the BPS is. Whilst including the views of groups like the BFMS in the Group’s deliberations is appropriate (indeed, excluding such views would also be a serious misjudgement), having someone so closely linked to a particular pressure group as the Chair surely opens the BPS to serious criticism.

6.  The lifespan of guidelines.

I was surprised to find out – despite a long and involved association with the BPS – that there is a policy of archiving guidelines and other documents after a set period of time. Whilst this is clearly a sensible policy for guidance which needs to be updated regularly to reflect changes in knowledge and/or practice, there is an associated responsibility to ensure that all users of such guidance are aware of such a limitation. Nowhere on the original document is there a statement identifying the period for which the guidelines are valid, the process by which they will be reviewed and the implications of using them after their ‘use-by’ date. I would guess that most people will still be regarding these documents as current policy. When I was working I had some considerable experience of NHS guideline development both at a national and local level and it was always made clear that there was a formal, structured and timed review process together with an identified person/post-holder being responsible for that process. Relying on a redeveloped website does not solve this problem. This is passive response which puts the responsibility back onto the user. And it is likely to exclude non-members simply because I would not expect every lawyer to regularly checking up on what is current and what is not. 

7.   Communication with the membership and others.

I find worrying at best and disingenuous at worst to think that the BPS is relying on queries to the office as a means of communicating key policy issues. I have already suggested that most members and users are unaware of the archiving policy in general and the non-applicability of these guidelines in particular. Why would they contact you? This is abrogating a key responsibility of the BPS to keep its members up-to-date and to ensure that those interfaces with the public that rely on our advice are updated as and when necessary. It  is the BPS’s responsibility to be proactive here, both in this case and in general. I am, frankly, astonished by the lack of effort that the BPS has put into keeping the membership up to speed on this matter. Did you inform the membership that the guidelines – containing advice that many practitioners will have need of – were archived and no longer current? If you have, well and good; if not then the BPS has failed in its duty to its members.

8.  Consulting about the decision.

You note that the Research Board decided to disband the Task and Finish Group in October 2020. Clearly, it is within the remit of the Board to make decisions about its own groups. However, the impact of this decision spreads far and wide throughout the Society. Off the top of my head, the Divisions of Clinical, Counselling, Forensic and Neuropsychology have an obvious and immediate interest; I would guess that the Cognitive, Crisis Disaster and Trauma, Developmental, Male, Sexualities, Women and Equalities and Psychotherapy Sections would have more than a passing interest; the Expert Witness Group most certainly would have an opinion. Were they consulted, informed, included at any stage in a decision which has importance for practice? Were the sections that would be able to inform the debate asked for a view? It looks as if the Research Board paid no attention at all to the wider consequences of their decision which has been compounded by the Society’s complete lack of transparency and action in informing the wider membership.

I look forward to hearing what steps the Board of Trustees and the SMG will take to address these issues.

7 thoughts on “Memory and the Law – a dereliction of duty – Part 2.”

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