Commentary
Any uncertainty as to whether a psychiatrist can provide an expert report as a paper-based assessment is answered by this case. In any event, the GMC, in Providing witness statements or expert evidence as part of legal proceedings (https://www.gmc-uk.org/professional-standards/the-professional-standards/providing-witness-statements-or-expert-evidence-as-part-of-legal-proceedings/providing-witness-statements-or-expert-evidence-as-part-of-legal-proceedings#witness-of-fact-specific-responsibilities-5624621CB7C54F7E9D1C1458166314C5 ) recognises that this may happen:
“If you are asked to give an opinion about a person without the opportunity to consult with or examine them, you must explain any limit that this places on your ability to give an opinion. If you decide to proceed, you should be able to justify your decision.”
It is also good practice to include a statement to the effect that you are willing to consult with, and examine, the person and, if necessary, amend your opinion.
In this case the paper-based assessment was sufficient for the court to conclude that, having regard to the Mental Capacity Act 2005, s 48, there were "reasons to believe that the Appellant lacks capacity". However, the fact that the court did not make a finding of a lack of capacity and transferred the case to a Tier 3 (High Court) Judge of the Court of Protection in order to determine the matter of capacity indicates how the court recognises how much more difficult it is to make a finding when the report relies on a paper-based assessment compared to a consultation with the subject of the report.
Learning points
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Acknowledge the limitation of a paper based assessment.
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The two-stage process for the assessment of capacity is now: (1) whether P is unable to make a decision for himself/herself in relation to the matter; (2) if so, whether that inability is “because of” an impairment of, or a disturbance in the functioning of, the mind or brain.
Case
On 19 June 2023 in the course of the continuing Court of Protection proceedings the court made injunctions supported by a penal notice against the Appellant. The injunctions included a prohibition whereby the Appellant should not "cause to be publicised on any social media, video or streaming service including YouTube, any video or recording of P recorded at any date." The issues dealt with in this judgment arose as a preliminary issue in a substantive appeal by the Appellant) from an order made in the Court of Protection on 22 January 2024 when the judge sentenced the Appellant to an immediate custodial sentence for a total of four months for contempt of court for breaching the injunctions.
The Appellant appealed against the making of the injunction. Permission was refused as totally without merit. Following the refusal of permission to appeal against the making of the injunctions, the Appellant wrote to the Court of Appeal indicating her intention to post more videos on social media and to reinstall various old posts which had been taken down. Shortly thereafter the Appellant relocated to France where she has remained since and from where she attended Court for the hearing of her appeal by remote link. Having left the jurisdiction in early September 2023, the Appellant resumed posting videos, articles and audio recordings on X and YouTube in breach of the injunctions.
On 15 November 2023, the Local Authority issued fresh committal proceedings. On 7 December 2023 the judge issued a bench warrant for the Appellant's arrest. On 22 January 2024 she attended the committal hearing remotely from France ("the 2024 committal proceedings"). The judge imposed an immediate sentence of imprisonment of three months concurrent for each of the breaches that he found she had committed in September 2023. In addition he imposed the 28 day suspended sentence of imprisonment that he had passed in the 2023 contempt proceedings to run consecutively making a total of four months immediate imprisonment.
On 21 March 2024 the Appellant filed an Appellant's Notice accompanied by three draft Grounds of Appeal. On 6 November 2024, an experienced Court of Protection solicitor together with a specialist Court of Protection counsel, a specialist media counsel, had a remote conference with the Appellant. During the course of the conference each of the three lawyers had concerns about the Appellant's capacity to conduct the appeal proceedings. As required under their professional obligation, those concerns were raised with the Appellant and she was invited to participate in a capacity assessment which was arranged for 18 November 2024 with Dr Pramod Prabhakaran a psychiatrist experienced in conducting capacity assessments for the Court of Protection. The Appellant declined to co-operate with such an assessment in strong terms.
Counsel for the local authority consulted the Bar Council guidance on incapacity and spoke also to its ethics advisors. Acting on that advice, an application was made by her solicitor for permission to instruct Dr Prabhakaran under Rule 35.4 CPR 1998 (Permission to instruct an expert) to permit him to undertake a paper based assessment of the Appellant's capacity to conduct proceedings.
On 15 November 2024, the court gave case management directions for the drafting of a letter of instruction and the preparation of a paper assessment. Dr Prabhakaran filed a report on 26 November 2024. In that report he set out his instructions and details of the relevant information he obtained from the documents which accompanied his instructions, including emails from the Appellant written by her in somewhat bizarre terms, as recently as 22 November 2024.
Expert evidence
Acknowledging the limitation of a paper based assessment, Dr Prabhakaran concluded that there was no evidence of a disorder of thought on the Appellant's part, but there was on the balance of probabilities, evidence of persistent persecutory ideation relating to various professionals and institutions. By reference to the material made available to him, he said:
"This suggests that [the Appellant's] persecutory beliefs persist, even when presented with evidence that could contradict them. Delusions are firmly held beliefs that persist despite evidence disproving or challenging them. For the individual experiencing them, these beliefs feel entirely real and are often resistant to change, regardless of efforts to challenge or disprove them. Based on the information reviewed, it is reasonable to consider, on the balance of probabilities, that [the Appellant's] beliefs may have reached the threshold of delusional intensity."
He concluded:
"In my opinion, on balance of probabilities, the information available suggests the possibility of a delusional disorder."
So far as the functional test found in the Mental Capacity Act, s 3 was concerned, Dr Prabhakaran concluded that there was no evidence to suggest that the Appellant could not understand or retain information but that: "due to her firmly held beliefs which persist despite evidence against these, on balance, her ability to use and weigh up information relevant to the court proceedings is likely to be affected as a result". Therefore, he said, on the balance of probabilities she was "unable to make decisions regarding the conduct of these proceedings".
It was clear that on the basis of his paper assessment, that Dr Prabhakaran was of the view that on the balance of probability the functional test was satisfied in that the Appellant was unable to make decisions regarding the conduct of the proceedings due to an inability to use and weigh up information relevant to the court proceedings and that on the balance of probabilities the information available suggests the "possibility of a delusional disorder".
Hearing on 3 December 2024: The court considered making an interim declaration pursuant to the Mental Capacity Act 2005, s 48 on the basis that the Court had "reasons to believe that the Appellant lacks capacity" and then transferring the case to a Tier 3 (High Court) Judge of the Court of Protection in order to determine the matter of capacity before the matter was returned to the Court of Appeal to hear the substantive appeal on a "firmer capacity footing".
The Appellant expressed her views about this clearly and strongly over a remote link. She became at times agitated and unsurprisingly, had difficulty in limiting her submissions to the issue of the necessity (or otherwise) for there to be a capacity assessment and determination. The Court was obliged to turn off the Appellant's microphone on a number of occasions during the hearing when she was unable to restrain herself or to listen to what was being said by others.
The Appellant told the Court that she was not prepared to undergo any form of capacity assessment in England. At one stage she seemed to suggest that she may be willing to co-operate with an assessment in France. It was unclear whether, given the provisions of the MCA 2005, she envisaged that such an assessment would be conducted remotely by a UK psychiatrist, as it would need to be, or whether she was suggesting an assessment by a French psychiatrist which clearly would not be of assistance as such an assessment would not be based on the UK law on mental capacity.
The Appellant said that the issue about capacity arose from "faulty and lying notes" which her legal team had made following the conference in November. She said that her adamant refusal to be assessed stemmed from the fact that her daughter had been wrongly assessed as lacking capacity by a "so called independent psychiatrist". She indicated that the issue of her daughter's capacity is before the European Court of Human Rights. She repeated her anger and upset about the alleged treatment of her by her lawyers saying that they were not fit to be instructed and had "shamelessly lied and made false notes". The Appellant quite understandably and with some justification regarded a further delay to the determination of her appeal as "intolerable".
Decision
Having read not only the psychiatric report, but also the evidence in support and having heard the submissions of the Appellant together with the observations from the solicitor and counsel on behalf of the local authority, the Court considered the position having in mind the limitations of the paper psychiatric assessment. However, having considered all the evidence, it concluded that it had reason to believe that the Appellant lacked capacity in relation to the appeal and that accordingly it would transfer the case to a Tier 3 (High Court) Judge of the Court of Protection in order to determine the matter of capacity.
The court noted that the MCA 2005 Code of Practice at para. 4.11 is in direct contradiction to the judgment in A Local Authority v JB [2021] UKSC 52 (Compendium 2021-2022) and stipulates the two-stage test of capacity should be approached with the first stage being to establish whether someone has an impairment (i.e. the diagnostic test) and only then to move onto the functional test. A new draft Code dated June 2022 but yet to be implemented, adopts the approach in Re JB. Regardless of the fact that the new Code has not yet been implemented, the court said that all assessments should comply with the Supreme Court approach (see Hemachandran v University Hospitals Birmingham NHS Foundation Trust [2024] EWCA Civ 896 (Compendium 2023-2024).
In JB the court held that if it was concluded that P is unable to make a decision for himself in relation to the matter, then the second question that the court is required to address under section 2(1) is whether that inability is “because of” an impairment of, or a disturbance in the functioning of, the mind or brain.