Commentary

There was no dispute about the expert evidence in this case but it is of interest for several reasons. First, it sets out in some detail the evidence of experts in educational psychology and occupational therapy and it therefore provides examples for those healthcare specialties of how to make their bodies of knowledge understandable to a tribunal (albeit a specialist tribunal which did include one specialist member with "substantial experience of special educational needs and/or disability”). I was particularly struck by the description of the parasympathetic as the ‘calm branch’ of the autonomic nervous system. Second, it illustrates the role of experts when their evidence is admitted by a specialist tribunal: although it can make decisions without expert evidence, if it has relevant expert evidence before it on an issue, it will be relevant evidence that it must take into account. Third, it sets out the test of which experts need to be aware in cases of alleged disability discrimination arising from a school’s treatment of a pupil with behavioural difficulties. Fourth, although psychiatrists and psychologists are often advised to keep the unconscious out of the witness box, for reasons to do with proof, it is encouraging to find a tribunal accepting such evidence. The detail of this summary is for psychologists and occupational therapists.

Learning points:

• Something arising in consequence of a person’s disability is an objective question.

• The question is whether the person’s behaviour is causally related to their disability.

• A person's disability may manifest in many different ways, including both in ways that the person in question will experience as apparently conscious decision-making and in ways that are unconscious.

• The fact that the physical behaviour is conscious, deliberate and/or retaliatory does not of itself mean that it is not causally connected to the disability.    

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