Good practice guidance for experts reporting on capacity: the dos and don’ts

In a recent decision, the Court of Protection has provided guidance to experts on how best to assist the court when writing expert reports on mental capacity.

The facts

G, a 68-year-old woman suffering with dementia resided in a local authority funded care home.  The local authority sought a determination that that G lacked capacity to make decisions in relation to her living arrangements, care and support, welfare arrangements and the management of her property.

A consultant forensic psychiatrist was instructed to assess G’s capacity.  At the final hearing the local authority claimed that it could not rely on the evidence of the expert as the assessments did not adequately address all of the capacity issues in question.  The hearing was adjourned for the parties to obtain additional expert evidence.

Guidance

Whilst the expert in question was not criticised, the report provided to the court was inconsistent in its conclusions and did not contain clear explanations.  The court subsequently confirmed that the following should be considered when providing evidence under the Court of Protection Rules 2017, Rule 15 and Practice Direction 15A:

  • Reports should seek to determine the identified issues and the expert should have close regard to the terms of the Mental Capacity Act 2005, the Code of Practice and the letter of instruction.
  • The letter of instruction itself should make clear the decisions under consideration, the relevant information for each decision, the need to consider the different elements of capacity, and the causal relationship between any impairment and the inability to decide. If an expert is unclear on any of this information, they should seek clarification.
  • It should be clear from the finished report that the expert has considered and applied the presumption of capacity.
  • Experts should ensure their conclusions are specific, consistent and coherent.
  • The report should include the reasons for the expert’s conclusions to allow the court to give weight to the opinion.
  • Experts should provide a fully reasoned explanation if they have changed their opinion on capacity.
  • If the expert relies on a particular exchange or something said by P during interview, then an account of what was said should be included.
  • The report should record the attempts to assist P to engage and any alternative strategies that were used. Failure to take steps to assist P to engage and to support P's decision-making would be contrary to the fundamental principles of sections 1(3) and 3(2) of the 2005 Act.

The court accepted the local authority’s view that the expert in the case could not be relied on fully to assess G's capacity and the case was adjourned to obtain a new expert report on capacity.  The court also confirmed that the new expert may reach the same conclusions as the first but that it was important for the court to be satisfied that the fundamental principles of the 2005 Act had been adhered to.

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