Summary

This case, in the Court of Protection, concerned whether a wealthy, elderly man lacked capacity. The judgment dealt primarily with an application by respondents 2-7 to replace the jointly instructed expert with a new expert or, at the very least, permission for them to instruct their own expert.   

The judge did not find grounds to end the Single Joint Expert’s instruction but was satisfied that permitting respondents 2-7 to obtain a further report was appropriate in this particular case.

Learning points

Learning points for experts who act in the Court of Protection

• If you act in cases in the Court of Protection on capacity, you might wish to review the Court’s expectations of an expert witness which were set out by Mr Justice Poole in AMDC v AG & CI [2020] EWCOP 58 [28] and which were considered by the judge in this case. They have been set out in the case update below.  

Learning points for litigants

• If you disagree with the conclusion of the Single Joint Expert, you may be allowed to instruct your own expert. However, you will need to be able to demonstrate that you meet the relevant cases and principles (set out in this judgment).

• In these circumstances, the Court may see this as preferable to replacing the existing Single Joint Expert.

The case

This case, in the Court of Protection, concerned whether a wealthy, elderly man (‘DA’) lacked capacity. The judgment dealt primarily with an application by respondents 2-7 to replace the jointly instructed expert, Dr P, with a new expert or, at the very least, permission for them to instruct their own expert.   

The criticism of Dr P and his report

There were a number of criticisms of Dr P and his report including:

• He initiated a conversation with Mrs Curran about the case without explicitly outlining that in his report,

• The way in which he treated allegations of financial exploitation relating to DA’s housekeeper and driver/butler in his report,

• Criticism of his analysis and some of the questions he asked,

• Criticism that parts of his analysis appears to have placed the diagnostic element before the functional element contrary to A Local Authority v JB [2021] UKSC 52,

• Criticisms of his use of ACEIII in isolation, and his evaluation of the seriousness of DA’s cognitive abilities in view of his presentation on other occasions.

The law

The Court of Protection Rules 2017 (‘COPR 2017’)on experts are set out in Part 15 and PD 15A. The expert must be “necessary to assist the court to resolve the proceedings” (15.3(1)). The judge stated that, in this case, there was no doubt that capacity evidence is necessary.

The judge noted that the parties usually instruct a Single Joint Expert (‘SJE’) in Court of Protection cases. In most cases, the expert’s conclusions will not be disputed but, where they are, the SJE will be asked to answer questions. If there is still a dispute, the expert will be required to attend a hearing for cross-examination.

This is usually the case even where one of the parties has a serious disagreement with the expert’s conclusions. However, the judge noted that the Court has the power to allow parties to instruct experts in addition, or instead of, the SJE.

The judge noted that the best exposition of what the Court should expect from an expert witness, was given by Mr Justice Poole in AMDC v AG & CI [2020] EWCOP 58 where he said at [28]:

“When providing written reports to the court on P’s capacity, it will benefit the court if the expert bears in mind the following:

a. An expert report on capacity is not a clinical assessment but should seek to assist the court to determine certain identified issues. The expert should therefore pay close regard to (i) the terms of the Mental Capacity Act and Code of Practice, and (ii) the letter of instruction.

b. The letter of instruction should, as it did in this case, identify the decisions under consideration, the relevant information for each decision, the need to consider the diagnostic and functional elements of capacity, and the causal relationship between any impairment and the inability to decide. It will assist the court if the expert structures their report accordingly. If an expert witness is unsure what decisions they are being asked to consider, what the relevant information is in respect to those decisions, or any other matter relevant to the making of their report, they should ask for clarification.

c. It is important that the parties and the court can see from their reports that the expert has understood and applied the presumption of capacity and the other fundamental principles set out at section 1 of the MCA 2005.

d. In cases where the expert assesses capacity in relation to more than one decision,

i. broad-brush conclusions are unlikely to be as helpful as specific conclusions as to the capacity to make each decision;

ii. experts should ensure that their opinions in relation to each decision are consistent and coherent.

e. An expert report should not only state the expert’s opinions, but also explain the basis of each opinion. The court is unlikely to give weight to an opinion unless it knows on what evidence it was based, and what reasoning led to it being formed.

f. If an expert changes their opinion on capacity following re-assessment or otherwise, they ought to provide a full explanation of why their conclusion has changed.

g. The interview with P need not be fully transcribed in the body of the report (although it might be provided in an appendix), but if the expert relies on a particular exchange or something said by P during interview, then at least an account of what was said should be included.

h. If on assessment P does not engage with the expert, then the expert is not required mechanically to ask P about each and every piece of relevant information if to do so would be obviously futile or even aggravating. However, the report should record what attempts were made to assist P to engage and what alternative strategies were used. If an expert hits a “brick wall” with P then they might want to liaise with others to formulate alternative strategies to engage P. The expert might consider what further bespoke education or support can be given to P to promote P’s capacity or P’s engagement in the decisions which may have to be taken on their behalf. Failure to take steps to assist P to engage and to support her in her decision making would be contrary to the fundamental principles of the Mental Capacity Act 2005 ss 1(3) and 3(2)."

Application of the law

In applying the law, the judge considered three matters:

1. First, if Dr P had acted inconsistently with his being an expert, he ought to disregard his report and direct a new report from another expert. However, the judge did not conclude that Dr P had acted improperly and he decided not to end his instruction as an SJE. There was no impropriety in his contact with Mrs Curran and he had not received any covert instructions that were not divulged in his report.

2. Second, there were criticisms of Dr P’s analysis in his report. The judge noted that the expert’s evidence is obtained to assist the Court on a point on which expert opinion is needed. Therefore, at any stage in the proceedings before a decision is made on the issue in the case, the Court has a right and a duty to decide whether the expert evidence is helpful. If the judge considers that a report before them is poor and unhelpful, then they have a duty to rectify that, including by directing a new expert be instructed.

The judge did not consider the report to be poor an unhelpful on the face of it. Dr P would likely have to attend cross-examination, but his report was not so poor that it needed to be jettisoned and a new expert instructed.

1. Third, whether respondents 2-7 should be permitted to instruct an expert. The judge noted that in In Daniels v Walker [2000] 1 WLR 1382, Lord Woolf, M.R at [1387] said (the judge’s emphasis):

“…Where a party sensibly agrees to a joint report and the report is obtained as a result of joint instructions in the manner which I have indicated, the fact that a party has agreed to adopt that course does not prevent that party being allowed facilities to obtain a report from another expert or, if appropriate, to rely on the evidence of another expert.

In a substantial case such as this, the correct approach is to regard the instruction of an expert jointly by the parties as the first step in obtaining expert evidence on a particular issue. It is to be hoped that in the majority of cases it will not only be the first step but the last step. If, having obtained a joint expert's report, a party, for reasons which are not fanciful, wishes to obtain further information before making a decision as to whether or not there is a particular part (or indeed the whole) of the expert's report which he or she may wish to challenge, then they should, subject to the discretion of the court, be permitted to obtain that evidence.”

The judge noted that this was subsequently distilled by HHJ MacDuff, Q.C. (as he then was) in Cosgrove v Pattison [2001] CPRLR 177 into this:

“Where a party requests a departure from the norm and makes what one can term a Daniels v Walker application, all relevant circumstances are to be taken into account but principally the court must have its eye on the overall justice to the parties. This includes what I have called the balance of grievance test. The application will only succeed in circumstances which are seen to be exceptional and to justify such a departure from the norm.”

The judge noted that these cases were both cited by Mr Justice Eady in Bulic v Harwoods & Ors [2012] EWHC 3657 (QB) who considered further when it was proper to allow a party to instruct an expert. He said (at [16]) (the judge’s emphasis):

“The importance of the overriding objective was often emphasised. Judge MacDuff, for example, referred to “overall justice to the parties”. Moreover, Lord Woolf stressed the point in Daniels v Walker at p.1386H:

“If, having agreed to a joint expert's report a party subsequently wishes to call evidence, and it would be unjust having regard to the overriding objective of the CPR not to allow that party to call that evidence, they must be allowed to call it.”

What represents justice between the parties will very much depend upon the facts of each case. For that reason, it can be distracting to focus too analytically on the reasoning in other cases, however authoritative, where the facts were not truly comparable. There are different factors to be taken into account and the importance of each is likely to vary according to the particular facts. For example, the saving of time and money is likely to assume greater significance in inverse proportion to the centrality of the issues. Where the court is concerned with a relatively “peripheral” issue, as in Kay, it is likely to be only in unusual circumstances that the services of a single joint expert will be dispensed with: see e.g. at [35]-[36].”

Therefore, the judge considered that the factors for consideration were:

• Expert evidence in this case is foundational, not only to the jurisdiction of the Court, but also as to whether there has, or has not been exploitation or abuse.

• Respondents 2-7 are adamant that DA’s presentation normally, including when he met with me, is different from the way he was portrayed in Dr P’s report, which is as being less intellectually able than he actually is.

• DA himself is unhappy with Dr P’s conclusions, and the method he used to examine him. It must be made clear, this is DA’s own view, not a point put forward by those acting on his behalf.

• The evidence is of a technical nature, and it appears that assessing DA’s capacity was not a straightforward issue for Dr P.

• There is a good chance there will be no extra delays if the expert chosen by respondents 2-7 examines DA.

The judge’s decision

In applying r.15.3(1) and PD 15A of the COPR 2017, the judge was satisfied that expert evidence was necessary to assist the Court to resolve the proceedings, and that permitting respondents 2-7 to obtain a further report was a proportionate departure from the SJE norm in this particular case. The judge noted that capacity is foundational to the jurisdiction and to the substantive welfare/property issues. DA himself disputes Dr Parvez’s conclusions and method; the issues are technically complex; and the additional focused report can be obtained without material delay.

The judge considered the saving of time and cost but, given the centrality of the capacity issues, was satisfied that overall justice between the parties justifies the limited departure from the usual approach, while retaining the current expert.

The judge did not make an order enabling the other parties to instruct their own expert or a new jointly instructed expert because the parties were happy with Dr P. Dr P could remain an expert, and the Court would consider his evidence in the light of the further evidence from the other expert. Allowing the other parties to instruct their own expert, or to instruct a different jointly instructed expert would likely increase cost and delay, and was not necessary to ensure fairness to them in this case.