'The witness who saw, /He left little doubt' : a comparative consideration of expert testimony in mental disability law cases in common and civil law systems

The question of how courts assess expert evidence - especially when mental disability is an issue - raises the corollary question of whether courts adequately evaluate the content of the expert testimony or whether judicial decision making may be influenced by teleology (cherry picking evidence), pretextuality (accepting experts who distort evidence to achieve socially desirable aims), and/or sanism (allowing prejudicial and stereotyped evidence). Such threats occur despite professional standards in forensic psychology and other mental health disciplines that require ethical expert testimony. The result is expert testimony that, in many instances, is at best incompetent and at worst biased. The paper details threats to competent expert testimony in a comparative law context - in both the common law (involuntary civil commitment laws and risk assessment criminal laws) and, more briefly, civil law. We conclude that teleology, pretextuality, and sanism have an impact upon judicial decision making in both the common law and civil law. Finally, we speculate as to whether the new United Nations Convention on the Rights of Persons with Disabilities is likely to have any impact on practices in this area. Copyright © 2009 John Wiley & Sons, Ltd.

Vision and rationalisation : a study of the school psychology profession within the Victorian Government school system

Since its origins in the 19th century, modern schooling has been a continuously contested domain within nation states. Underlying this contestation dynamic lie competing value systems about the social purpose of education; competing values around which are generated different discourses, and which in turn generate inherently contradictory social and organisational structures. As reflected in other areas of society, the 20th century expansion of state-provided schooling has essentially developed around variations of a bureaucratic model Thus, organisational cultures based around bureaucratic values have come to permeate the enterprise of schooling on a world wide scale. Concomitantly, the value for education to be fundamentally associated with human emancipation from psychological, social, political, or economic states of being, persists as a recurring theme in modern schooling. Premised on these understandings, the thesis argues that the development of the practices of school psychology as a profession, like education in general, and special education in particular, has similarly been influenced by tensions between different and competing constellations of values. It is argued that throughout the 20th century, the pervasiveness of formal schooling systems suggest that schooling may be understood as a modernist cultural archetype. As a socially constructed reality, the phenomenon of schooling has become unproblematic the apparent cultural inevitability of formal schooling in the modern era can also be understood as a premise of a systemised way of looking at the world; that of bureaucratic consciousness. Dialectically, bureaucratic consciousness persists in influencing every manifestation of schooling; structurally through its organisational forms, and epistemologically through the institutionalization of teaching and learning. A particular illustration of the dialectical relationship between bureaucratic consciousness and the social forms and social practices of schooling is the school psychology profession which has developed as a part of school systems. The thesis argues that the epistemic archeology of psychology as a knowledge discipline can be traced through an earlier European intellectual and cultural tradition, but in the 20th century, has come to develop a symbiotic yet contradictory relationship with compulsory schooling in the modern nation state. The research study employs historical and fieldwork methods in a study of the development of the school psychology services within the Victorian Education Department, particularly between 1947 and 1987. The thesis also draws upon several usually distinct literatures; the philosophical and theoretical discourse of modernity and post modernity, the history and development of modern schooling, the ethnography of schooling, the international comparative literature on the school psychology profession, and the literature on action research in education practice and curriculum development, As a case study of Victorian school psychology, the research eschews a quantitative statistical approach in favour of qualitative investigatory genres, which have in turn been guided by the values of action research in education, as well as those of critical theory. The important focus of the thesis is its investigation of some aspects of the development and transformations within the Victorian state education bureaucracy, and the dialectical relationship that has persisted between the evolution of change processes and the shifting conceptions of school psychology practices in the 20th century. A history of the organisational development of school psychology services in Victoria constitutes an important part of the thesis. This is complemented by specific illustrations of how some school psychologists have been influenced by and have contributed towards paradigm shifts within the profession, shifts relating to how the changing nature of their work practices have come to be understood and valued by teachers and by school administrators. The work of J. R. MacLeod from the 1950s is noted in this regard. Particular attention is also drawn to the dialectical relationship between bureaucratic consciousness and school psychology's professional orientation in the 1980s. As a means of providing field data to explore this relationship, ethnographic case studies with two school communities are included as part of the fieldwork of the thesis, and are based upon the author's own work in the mid 1980s. These case studies provide a basis for conceptually refraining the school psychologist's professional experience within schooling systems, and an opportunity to examine how competing value systems impact upon the work of the school psychologist. The thesis concludes with some observations about bureaucratic transformations within educational organisations, and about the future relationship of the school psychology profession with schooling systems, as framed by the theoretical parameters of the modernist /post modernist debate. The issue of competing value systems within the administration of public education is re-examined as is the value of promoting human empowerment in the ongoing work of the school psychologist. Finally, some scenario building with reference to the future of school psychology in Victoria in is undertaken.