In a recent case the Vice-President of the Court of Protection made some important comments in relation to case management. The CoP team at 39 Essex Chambers reports.
The case of London Borough of Southwark v NP & Ors  EWCOP 48 (Hayden J), concerned with the welfare of a 17 year with cerebral palsy and atypical anorexia, is of interest on the facts for the way in which the court had to consider the complexity of a relationship between a mother and daughter and the influence of the latter upon the former. It is of broader significance for the observations made by the Vice-President, Hayden J, about case management.
Hayden J was concerned that the young woman’s treating psychiatrist who was giving, in effect, expert evidence was doing so on the basis of incomplete information and incomplete information-sharing. At paragraph 30, Hayden J noted that he had:
enquired of the very experienced counsel in this case whether in Court of Protection proceedings, they have ever had experience of an Expert's Meeting being conducted. Only Ms Paterson had and then only on two occasions. For my part, I do not remember a document reflecting such a meeting being filed in any proceedings that I have heard. In a court arena where conflicts of expert evidence arise regularly and in which such evidence is commonplace this is, to my mind, very unusual. Additionally, I note that I am rarely called on to make Disclosure Orders and have frequently been concerned by blockages in channels of communication which ought otherwise to have been regarded as integral to informed decision taking. […] What requires to be considered, to my mind, is whether the Court and the lawyers can improve case management more generally. I am convinced that we can.
Accordingly, Hayden J set down a set of “general principles” at paragraph 31 concerning both case management generally and expert evidence in particular:
i. Though the avoidance of delay is not prescribed by the Mental Capacity Act 2005, the precept should be read in to the proceedings as a facet of Article 6 ECHR (see: Imperial College Healthcare An NHS Trust v MB & Ors  EWCOP 29). Any avoidable delay is likely to be inimical to P's best interests;
ii. Effective case management is intrinsic to the avoidance of delay. Though the Court of Protection, particularly at Tier 3, will frequently be addressing complex issues in circumstances of urgency, thought should always be given to whether, when and if so in what circumstances, the case should return to court. This will require evaluation of the evidence the Court is likely to need and when the case should be heard. This should be driven by an unswerving focus both on P's best interests and the ongoing obligation to promote a return to capacity where that is potentially achievable.
iii. Where, at any hearing and due to the circumstances of the case, it is not possible prospectively to anticipate what future evidence may be required, the parties and particularly the Applicant and the Official Solicitor (where instructed) should regard it as an ongoing obligation vigilantly to monitor the development of the case and to return to the Court for a Directions Hearing when it appears that further evidence is required which necessitates case management;
iv. Practice Direction 15A, Court of Protection Rules 2017 is intended to limit the use of expert evidence to that which is necessary to assist the court to resolve the issues in the proceedings;
v. The Practice Direction sets out the general duties of the expert, the key elements of which require to be emphasised:
1.It is the duty of an expert to help the court on matters within the expert's own expertise.
2.Expert evidence should be the independent product of the expert uninfluenced by the pressures of the proceedings.
3.An expert should assist the court by providing objective, unbiased opinion on matters within the expert's expertise, and should not assume the role of an advocate.
4.An expert should consider all material facts, including those which might detract from the expert's opinion.
5.An expert should make it clear—(a) when a question or issue falls outside the expert's expertise; and(b) when the expert is not able to reach a definite opinion, for example because the expert has insufficient information.
6.If, after producing a report, an expert changes his or her view on any material matter, such change of view should be communicated to all the parties without delay, and when appropriate to the court.
vi. In Court of Protection proceedings, the Court will frequently be asked to take evidence from treating clinicians. Invariably, (again especially at Tier 3) these will be individuals of experience and expertise who in other cases might easily find themselves instructed independently as experts. Treating clinicians have precisely the same obligations and duties upon them, when preparing reports and giving evidence as those independently instructed. Further, it is the obligation of the lawyers to ensure that these witnesses are furnished with all relevant material which is likely to have an impact on their views, conclusions and recommendations. (see: Re C Interim Judgment: Expert Evidence)  EWFC B9 ). This should not merely be regarded as good litigation practice but as indivisible from the effective protection of P's welfare and autonomy;
vii. Evidence of clinicians, experts, social workers, care specialists etc is always to be regarded as individual features of a broader forensic landscape in to which must be factored the lay evidence. One expert or clinician is unlikely ever to provide the entire answer to the case (see: Re T  2 FLR 838 ). It follows that Experts meetings or Professionals meetings should always be considered as a useful tool to share information and to identify areas of agreement and / or disagreement;
viii. When evaluating the significance of expert evidence and particularly when the issues being considered are, as has regularly been the case in the Court of Protection, at the parameters or frontier of medical or expert knowledge, this should be properly identified and acknowledged. In considering the evidence, it is always helpful to reflect that yesterday's orthodoxies may become today's heresies. (see: R v Harris and Others  EWCA Crim 1980);
ix. Witnesses from whatever disciplines may be susceptible to 'confirmation bias'. This is to say they may reach for evidence that supports their proffered conclusion without properly engaging with the evidence that may weaken it. ((see: Cleveland Report (report of the enquiry into Child Abuse in Cleveland 1987 Cm 412 London: HMSO 010/1041225));
x. Consideration must always be given to relevant, proportionate written questions to an independently instructed expert.
The Vice-President’s observations about case management sit alongside and amplify the obligations already imposed upon the parties (and, it should be added, the court) by both Part 1 of the Court of Protection Rules 2017 and the Case Pathways Practice Direction (PD 3B), both of which can be most easily accessed via the Court of Protection Handbook website here.
This article was written by the Court of Protection team at 39 Essex Chambers.