Guidance for Expert Witnesses on Capacity
The court was asked as to the preparation and use of expert reports as to the capacity of a patient litigant.
Held: Poole J discussed what was need of expert witness in such cases: ‘it will benefit the court if the expert bears in mind the following:
a. An expert report on capacity is not a clinical assessment but should seek to assist the court to determine certain identified issues. The expert should therefore pay close regard to (i) the terms of the Mental Capacity Act and Code of Practice, and (ii) the letter of instruction.
b. The letter of instruction should, as it did in this case, identify the decisions under consideration, the relevant information for each decision, the need to consider the diagnostic and functional elements of capacity, and the causal relationship between any impairment and the inability to decide. It will assist the court if the expert structures their report accordingly. If an expert witness is unsure what decisions they are being asked to consider, what the relevant information is in respect to those decisions, or any other matter relevant to the making of their report, they should ask for clarification.
c. It is important that the parties and the court can see from their reports that the expert has understood and applied the presumption of capacity and the other fundamental principles set out at section 1 of the MCA 2005.
d. In cases where the expert assesses capacity in relation to more than one decision,
i. broad-brush conclusions are unlikely to be as helpful as specific conclusions as to the capacity to make each decision;
ii. experts should ensure that their opinions in relation to each decision are consistent and coherent.
e. An expert report should not only state the expert’s opinions, but also explain the basis of each opinion. The court is unlikely to give weight to an opinion unless it knows on what evidence it was based, and what reasoning led to it being formed.
f. If an expert changes their opinion on capacity following re-assessment or otherwise, they ought to provide a full explanation of why their conclusion has changed.
g. The interview with P need not be fully transcribed in the body of the report (although it might be provided in an appendix), but if the expert relies on a particular exchange or something said by P during interview, then at least an account of what was said should be included.
h. If on assessment P does not engage with the expert, then the expert is not required mechanically to ask P about each and every piece of relevant information if to do so would be obviously futile or even aggravating. However, the report should record what attempts were made to assist P to engage and what alternative strategies were used. If an expert hits a ‘brick wall’ with P then they might want to liaise with others to formulate alternative strategies to engage P. The expert might consider what further bespoke education or support can be given to P to promote P’s capacity or P’s engagement in the decisions which may have to be taken on their behalf. Failure to take steps to assist P to engage and to support her in her decision-making would be contrary to the fundamental principles of the Mental Capacity Act 2005 ss 1(3) and 3(2).’
Judges:
Poole J
Citations:
[2020] EWCOP 58
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Sheffield City Council v E; Re E (An Alleged Patient) FD 2-Dec-2004
The council sought an order to prevent E, a patient from contracting a marriage which it considered unwise. As a preliminary issue the parties sought guidance as to the questions to be put to the expert as to capacity.
Held: The woman suffered . .
Cited – LBL v RYJ and Another CoP 22-Sep-2010
Whether RYJ lacked capacity to litigate.
Held: For such capacity the person must understand the salient information but not necessarily all the peripheral detail. . .
Cited – Cheshire West and Chester Council v P and Another COP 14-Jun-2011
The patient, an adult without capacity and with Down’s syndrome and cerebral palsy complained of his treatment, when in order to prevent his habit of eating his nappy, they dressed him in an adult babygrow costume. The court was asked whether the . .
Cited – PH v A Local Authority CoP 30-Jun-2011
The Court was asked whether PH, a forty-nine year old man, suffering from Huntingdon’s Disease had capacity to make decisions about his residence, care and treatment. . .
Cited – London Borough of Tower Hamlets v NB (Consent to Sex) CoP 16-Jul-2019
The Court considered the capacity of the patient to consent to sexual relations.
Held: The criteria by which capacity is evaluated on any particular issue should not be confined within artificial or conceptual silos but applied in a way which . .
Cited – London Borough of Tower Hamlets v PB CoP 3-Jul-2020
Whether PB had capacity to litigate.
Held: Hayden J gave guidance as to the general approach to be taken by the court when determining an issue of capacity: ‘i. The obligation of this Court to protect P is not confined to physical, emotional . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice, Health
Updated: 07 April 2022; Ref: scu.656017