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

• Acknowledge the limitation of a paper based assessment.

• 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.

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