Text:ICLR [2020] WLR(D) 645
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Mental disorder— Incapable person— Capacity— Expert’s report— Guidance on how reports of expert witnesses may best assist court— Court of Protection Rules 2017 (SI 2017/1035), Pt 15; Practice Direction 15A
Without being prescriptive about the form and content of experts’ reports on capacity in cases concerning an adult potentially lacking mental capacity in facets of their decision-making, Part 15 of the Court of Protection Rules and Practice Direction 15A supplementing Part 15 should be followed by all experts and those instructing them, or passing comment on the way an expert should interview or assess P. Such matters are for the expert’s professional judgment and they must always be sensitive to what is required for the individual assessment in which they are engaged. The following comments are specifically directed at, and are intended to assist, experts when writing reports in cases concerning a potential lack of capacity, although they may also be assistance to all assessors under section 49 of the Mental Capacity Act 2005 or to a social worker or a best interests assessor.
When providing written reports to the court on a vulnerable adult (“P’s”) capacity, 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 (a) the terms of the Mental Capacity Act 2005 and Code of Practice, and (b) the letter of instruction.
(b) The letter of instruction should 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 2005 Act.
(d) In cases where the expert assesses capacity in relation to more than one decision, (a) broad-brush conclusions are unlikely to be as helpful as specific conclusions as to the capacity to make each decision; (b) 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 sections 1(3) and 3(2) of the 2005 Act (paras 26, 27, 28).
Brett Davies, solicitor (instructed by and of Legal Department, District Council) for the local authority.
Joseph O'Brien (instructed by Switalskis Solicitors Ltd) for the incapacitated adult.
Ben McCormack (instructed by Cartwright King Ltd) for the care home resident.
Thomas Barnes, Solicitor