Advising as to the applicable law

 

Commentary

The detail of this judgment is for experts who conduct capacity assessments. Two points arise of more general interest.

First, the expert, who had been involved in the case for six years, changed her opinion. In the language of the court it was a 180^o degree change. The court thought that this called for a greater discussion in the analysis section of the report. This seems to have been that section of the report for which experts use the heading ‘Facts and assumed facts’ or ‘Factual analysis’. 

Second, the expert suggested that the issues, or some of the issues, in the case could be resolved by invoking the inherent jurisdiction of the court. But there had been no application for the exercise of the court's inherent jurisdiction, it was not referred to in the letter of instruction, and it might not – as a matter of law – have been available. This is a good example of the advice to experts to leave the law to the lawyers.  

Learning points:

General

• Beware the contemplation of a potential legal outcome which is not on the table (e.g. there is no application for the exercise of the court's inherent jurisdiction), is not referred to in the letter of instruction, and might not – as a matter of law – be available.

• If the issue is not in your letter of instruction, beware addressing it.

• A complete change of opinion calls for a greater discussion in the analysis section.

Capacity assessments

• Cross-check their conclusions by looking at the wider canvas about how the person functions.

• Triangulate views with the assessments carried out by other professionals.

• Speaking to those who knew the person being assessed well.

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