Guidance given on case management, particularly expert evidence, for Court of Protection cases

Vice President of the CoP sets out case management guidance, with a particular focus on expert evidence.

Southwark London Borough Council v NP (by her Litigation Friend, the Official Solicitor) & Ors. [2019] EWCOP 48

Overview

In a helpful decision for practitioners, the Vice President of the Court of Protection (‘CoP’) has set out case management guidance for CoP cases, with a particular focus on expert evidence.

Background

The case concerned a 17 year old with cerebral palsy, NP, who was on a child protection plan who was removed from her mother’s care when she became so malnourished that she was at risk of death.

Following hospitalisation and some improvement in her condition, a psychiatrist made a number of recommendations about NP’s future but had not been provided with access to significant sections of relevant material, and had not reviewed NP's medical records. One of the other parties was the hospital trust to which NP had been admitted and the court found that both the trust and the Official Solicitor (representing NP) had with "undoubtedly good intentions" been forced to make important decisions with limited time available and without adequate sharing of information, just as in London Borough of Tower Hamlets v NB and another [2019] EWCOP 27, where the CoP had commented on the dangers of "conceptual silos" in which parties, experts and professionals fail adequately to share information that will inform their decision-making.

The decision

This case highlighted the problems of experts making recommendations based on only partial information and the court found that inadequate sharing of information was rooted in the difficulty the CoP had in maintaining established case management processes. Accordingly, the Vice President set out the following general principles:

  • Though the avoidance of delay is not prescribed by the Mental Capacity Act 2005 (‘the MCA’), the precept should be read in to the proceedings as a facet of Article 6 ECHR (see: Imperial College Healthcare An NHS Trust v MB & Ors [2019] EWCOP 29). Any avoidable delay is likely to be inimical to the individual's best interests;
  • Effective case management is intrinsic to the avoidance of delay. Though the CoP, particularly at Tier 3, will often be addressing complex issues in circumstances of urgency, thought should always be given to whether, when and if so in what circumstances, the case should return to court. This will require evaluation of the evidence the court is likely to need and when the case should be heard. This should be driven by an unswerving focus both on the individual's best interests and the ongoing obligation to promote a return to capacity where that is potentially achievable;
  • Where, at any hearing and due to the circumstances of the case, it is not possible prospectively to anticipate what future evidence may be required, the parties and particularly the Applicant and the Official Solicitor (where instructed) should regard it as an ongoing obligation vigilantly to monitor the development of the case and to return to the court for a Directions Hearing when it appears that further evidence is required which necessitates case management;
  • Practice Direction 15A of the Court of Protection Rules 2017 is intended to limit the use of expert evidence to that which is necessary to assist the court to resolve the issues in the proceedings;
  • The Practice Direction sets out the general duties of the expert, the key elements of which need to be emphasised:
    • It is the duty of an expert to help the court on matters within the expert's own expertise.
    • Expert evidence should be the independent product of the expert uninfluenced by the pressures of the proceedings.
    • An expert should assist the court by providing objective, unbiased opinion on matters within the expert's expertise, and should not assume the role of an advocate.
    • An expert should consider all material facts, including those which might detract from the expert's opinion.
    • An expert should make it clear (a) when a question or issue falls outside the expert's expertise; and (b) when the expert is not able to reach a definite opinion, for example because they have insufficient information.
    • If, after producing a report, an expert changes his or her view on any material matter, such change of view should be communicated to all the parties without delay, and when appropriate to the court.
  • In CoP proceedings, the court will frequently be asked to take evidence from treating clinicians. Invariably, (again especially at Tier 3) these will be individuals of experience and expertise who in other cases might easily find themselves instructed independently as experts. Treating clinicians have precisely the same obligations and duties upon them, when preparing reports and giving evidence as those independently instructed. Further, it is the obligation of the lawyers to ensure that these witnesses are furnished with all relevant material which is likely to have an impact on their views, conclusions and recommendations. This should not merely be regarded as good litigation practice but as indivisible from the effective protection of the individual's welfare and autonomy;
  • Evidence of clinicians, experts, social workers, care specialists and others is always to be regarded as individual features of a broader forensic landscape in to which must be factored the lay evidence. One expert or clinician is unlikely ever to provide the entire answer to the case. It follows that experts meetings or professionals meetings should always be considered as a useful tool to share information and to identify areas of agreement and / or disagreement;
  • When evaluating the significance of expert evidence and particularly when the issues being considered are, as has regularly been the case in the CoP, at the parameters or frontier of medical or expert knowledge, this should be properly identified and acknowledged. In considering the evidence, it is always helpful to reflect that yesterday's orthodoxies may become today's heresies.;
  • Witnesses from whatever disciplines may be susceptible to 'confirmation bias’. This is to say they may reach for evidence that supports their proffered conclusion without properly engaging with the evidence that may weaken it. ((see: Cleveland Report (report of the enquiry in to Child Abuse in Cleveland 1987 Cm 412 London: HMSO 010/1041225));
  • Consideration must always be given to relevant, proportionate written questions to an independently instructed expert.

Conclusions and implications

This decision is of particular interest due to the judge’s comments on the sharing of evidence between the medical expert, the council and the trust, and that he then went on to set out ten case management principles which parties in CoP proceedings will be expected to adopt in the future, aimed as they were at identifying areas for "real and immediate improvement" to assist the CoP in giving effect to the principles in the MCA.

If you have any questions or would like to know more about our update, please contact Morris Hill, Legal Director, on 0151 242 7990 or morris.hill@weightmans.com.

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