Expert reports in the Court of Protection

The presumption of capacity is the paramount principle in the Mental Capacity Act 2005 (“MCA 2005”). It can only be displaced by cogent and well-reasoned analysis. During proceedings in the Court of Protection, one of the Court’s main responsibilities is to determine whether a Protected Party (“P”) has the capacity to make decisions. It is common practice for the Court to call upon expert evidence regarding the protected party’s mental capacity to assist them in establishing whether P has capacity to make various decisions.

All instructions given to experts and the report produced should always have regard to the fundamental principles of the MCA 2005 and the Court of Protection Rules r15 and the Practice Direction 15A. Whilst the Court are not bound by the expert’s report, it is a good guide for them in weighing up the issues at hand whilst protecting P’s autonomy.

More recently, following the case of AMDC v AG [2020] EWCOP 58, the Court of Protection has provided clear guidance for future cases that involve experts who are instructed to assist the Court in determining the question of the P’s capacity. The case highlighted the importance of implementing a thorough and structured process in dealing with capacity assessments and reports.

The case focused on AG, a 68 year-old woman suffering from dementia, and her capacity to make decisions pertaining various issues including AG’s place of residence, management of her property and finance, care and support, and AG’s capacity to marry.

The parties jointly instructed a psychiatric expert to assess AG’s capacity to make the various decisions set out above and assist the Court in deciding whether AG had the requisite capacity. The proceeding was adjourned when it became clear that the expert report on capacity did not sufficiently address all of the issues in question.

Following the hearing, the Court provided guidance on how expert reports on capacity should be prepared in order to assist the Court. The guidance is as follows:

• An expert’s report on capacity was 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 MCA 2005 and the Code of Practice; and (ii) the letter of instruction;
• The letter of instruction should 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 was important that the parties and the court could see from the reports that the expert had understood and applied the presumption of capacity and the other fundamental principles set out in the Mental Capacity Act;
• In cases where the expert assessed capacity in relation to more than one decision, broad-brush conclusions were unlikely to be as helpful as specific conclusions regarding the capacity to make each decision;
• An expert’s report should explain the basis of each opinion;
• If an expert changed their opinion on capacity, they should provide a full explanation;
• If the expert relied on a particular exchange or something said by the person being assessed during interview, then an account of what was said should be included;
• If, on assessment, the individual did not engage with the expert, the report should record what attempts had been made to assist them to engage and what alternative strategies had been used. If an expert hit a “brick wall”, they might want to liaise with others to formulate alternative strategies to engage the person who is being assessed. Failure to take steps to engagement and to provide support in decision-making would be contrary to the fundamental principles of the MCA 2005.

The case highlights the importance of ensuring the fundamental principles of the MCA 2005 are followed whilst providing guidance as to the appropriate steps to taken in supporting P’s decision-making and engagement in any assessment and for the conclusion of that assessment to be adequately explained.

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*