AMDC v AG  EWCOP 58
Expert evidence guidance The court was critical of the jointly-instructed psychiatric reports in this case and provided detailed guidance on how experts' reports on capacity can best assist the court.
26. It might be helpful to provide some indications of how experts' reports on capacity in a case such as this can best assist the court. In doing so, I have no wish to be prescriptive about the form and content of reports - the Court of Protection Rules r15 and the Practice Direction 15A should of course be followed by all experts and those instructing them. Nor shall I comment on the way an expert should interview or assess P – those are matters for the expert's professional judgment. The inquiry into capacity will vary considerably from case to case, and experts must always be sensitive to what is required for the individual assessment in which they are engaged. I am also mindful of the very recently published final report of the President's Working Group on Medical Experts in the Family Courts, in which Mr Justice Williams and his working group highlight the pressures on expert witnesses that surely apply also to those giving evidence in the Court of Protection – the rates of remuneration, the lack of support and training, the court processes and perceived criticism by lawyers, judiciary and the press. It is with due care therefore that I provide the following comments which are intended merely to assist experts when writing reports in cases such as the present one. The Working Group recommends constructive feedback to encourage good practice.
27. Expert evidence under COPR r15 is by no means the only way in which capacity assessments are provided to the court Indeed r15.3(2) provides
"The court may give permission to file or adduce expert evidence … only if satisfied that the evidence –
- (a) Is necessary to assist the court to resolve the issues in the proceedings; and
- (b) Cannot otherwise be provided either –
- (i) by a rule 1.2 representative; or
- (j) in a report under section 49 of the Act."
Some section 49 reports are written by psychiatrists who might, in other cases, provide an expert report under r.15. An assessment of capacity is no less important when carried out under s. 49 or by a social worker or Best Interests Assessor. What follows might be of assistance to all assessors, but it is specifically directed to r15 expert witnesses because that is the form of evidence under consideration in this case.
28. When providing written reports to the court on 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 (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).
29. The newly instructed expert in this case may or may not reach the same conclusions as Dr Quinn, but it will be important that the parties and the court can see from their report that the fundamental principles of the MCA 2005 have been followed, that proper steps have been taken to support AG's decision-making and participation in the assessment, and that the conclusions reached are adequately explained.