Making the right choice of expert

An unusual case where there was controversy over the appointment of an expert in Court of Protection proceedings has potentially wide significance, writes the Court of Protection team at 39 Essex Street.

The proceedings in SC v BS and A Local Authority (unreported, 7 October 2011) concerned BS, the 17 year old daughter of SC who was due to turn 18 shortly after the date of the hearing.

BS had been accommodated pursuant to section 20 of the Children Act for a number of years and was admitted to a psychiatric unit for a period between October 2009 and March 2010 during which time she was diagnosed with Aspergers and post-traumatic stress disorder. Following that she had spent several periods in a psychiatric hospital following suicide attempts. A diagnosis of autism had also been advanced.

The primary issue before the Court of Protection was the adequacy of the expert evidence as to whether or not BS lacked capacity in certain relevant regards including to litigate, to make decisions as to her residence, whether to accept care and support, contact with others and to take prescribed medication.

On 5 May 2011 an interim declaration that BS lacked capacity had been made by Mostyn J. On 26 May 2011, permission was given to the parties by Roderic Wood J to jointly instruct a psychiatrist to report on her capacity and an independent social worker to report on BS’s best interests. However, as BS was at that time subject to orders under section 3 of the Mental Health Act, the instruction of the experts was suspended. By August 2011, consideration was being given to discharging BS from the young people’s psychiatric unit where she was accommodated but a dispute arose as between SC and the local authority as to her proposed placement. At a further hearing in September 2011, the local authority indicated that they did not consider that BS lacked capacity and effectively contended that SC exaggerated BS’s symptoms.The suspended directions for expert reports were renewed. The Official Solicitor reserved their position as to BS’s capacity pending the expert report.

By the time of the hearing before Baker J, the psychiatrist, a Professor T, had prepared an interim report and his preliminary conclusion was that BS did not lack capacity. The expert attended court to give evidence and acknowledged that he had not had the opportunity to examine the extensive social worker and medical records relating to BS prior to writing that report, had only spoken to BS in reaching his conclusion and had advised BS of his provisional view that she had capacity. The expert also acknowledged that he had not given evidence in the Court of Protection previously and had no experience of applying the Act in practice although he had considered capacity in the context of criminal proceedings.

The local authority accepted that the issue of capacity remained hotly disputed, notwithstanding the preliminary conclusion reached by the expert, given the evidence base on which he relied. It was agreed that the question of capacity could not be definitively resolved until the final report was produced. However, both SC and the Official Solicitor (for different reasons) no longer considered the psychiatrist to be an appropriate expert. In particular, both SC and the Official Solicitor expressed concern that the expert had communicated his preliminary view to BS. Other concerns raised were principally addressed at the expert’s lack of experience in applying the MCA 2005 in practice, particularly in the context of proceedings where the determination of this issue was of such significance.

The local authority resisted the instruction of a new expert and noted that the alternative experts proposed would not be able to report immediately and their instruction would lead to a further delay of six to seven weeks in circumstances where BS was subject to a deprivation of her liberty and was expressing a strong desire to change accommodation. The original expert wrote to the Court identifying that he could attend MCA training the week after the hearing and prior to preparing his final report.

Baker J concluded that it was appropriate to instruct a different expert. In reaching this conclusion he noted the competing interests of resolving the issues swiftly such as to ensure the minimum restrictions on BS, and the need to ensure the appropriate degree of expertise in a case where the issue of capacity was both complex and fundamental.

In particular, Baker J expressed concern that the expert had communicated his provisional views to BS and held that no expert should give a patient a “provisional” view of their capacity without reading the patient’s history. Equally, whilst acknowledging the original expert’s expertise in autism, Baker J considered that he lacked sufficient experience in applying the test under the Act and it could not be satisfactory to seek the expert opinion from someone who perceives the need to undergo training before he can give that opinion.

Comment

As Baker J acknowledged, it is unusual for the appointment of an expert to generate such a degree of controversy in COP proceedings. Whilst relatively extreme on the facts, this case serves to highlight that when appointing an expert to report on capacity, care should be taken to ensure that the expert has sufficient experience of considering capacity in the specific context of the MCA 2005 rather than in a more general sense, even where, as in the present case, the expert has experience of giving evidence for the purpose of other types of legal proceedings.

We note, however, that whilst the Court and the parties emphasised the fundamental nature of the issue as to BS’s capacity, in reality, capacity is a fundamental issue in all proceedings before the COP given that it forms the basis of the Court’s jurisdiction. It follows that this judgment is of potentially far wider relevance.

This article was prepared by the Court of Protection team at 39 Essex Street.