Guidance provided by Mr Justice Poole on the…

In a decision released on 20 November 2020, Mr Justice Poole has handed down guidance on the proper approach which should be taken by psychiatrists (and possibly other expert witnesses) who are called on to assess the capacity of individuals to make their own decisions under the Mental Capacity Act 2005. In AMDC v AG and CI [2020] EWCOP 58 the Judge summarised his Guidance in the following 8 points:

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.

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.

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 MCA2005.

In cases where the expert assesses capacity in relation to more than one decision,
1. broad-brush conclusions are unlikely to be as helpful as specific conclusions as to the capacity to make each decision
2. experts should ensure that their opinions in relation to each decision are consistent and coherent.

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.

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.

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.

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).

This is valuable guidance to remind psychiatric experts that a report which offers a general assessment of the psychiatric health of an individual will only go so far in assisting the court which is required to determine a person’s capacity to make specific decisions, such as choosing their own accommodation or giving consent to sexual relations. In order to assist the court, a psychiatric report has to be focused on the precise issues that the Judge is required to address under the statutory scheme.

David Lock QC

David Lock is ranked by legal directories in the highest banding country for undertaking health and welfare cases in the Court of Protection.