How should you write and structure a Section 49 Report or an expert report on P’s Capacity in Court of Protection proceedings?
In this case Mr Justice Poole provides useful guidance to professionals completing expert and Section 49 Reports on P’s capacity in Court of Protection proceedings.
This case provides guidance to professionals completing expert and Section 49 Reports on P’s capacity in Court of Protection proceedings. It reminds professionals not only of what should be included and addressed in their report but also on the importance of the report and how it will be scrutinised by the parties and the court.
For further information about this case, please contact Ruth Atkinson-Wilks, Associate.
You can read the full case summary below.
In this case, the parties jointly instructed an expert to provide a report on P’s capacity to make various decisions including those related to her residence, care and support, marriage, divorce and engaging in sexual relations.
The expert provided three separate reports over the course of ten months. These reports were not considered to be satisfactory by the parties to the proceedings nor the court to enable final declarations regarding capacity to be made. The parties concerns included the following:
- The expert's reports did not provide sufficient evidence that P had been given the relevant information in relation to each decision nor did they evidence the discussions the expert had had with P about the relevant information.
- Significantly different conclusions were reached in different reports with no clear explanation as to why the conclusions had changed
- The expert’s final conclusion was reached on a broad-brush basis rather than by reference to each specific decision under consideration
- There was a lack of information on how P had been assisted to engage with the expert and therefore it was not clear whether P lacked capacity to understand the purpose of the interview, whether she had chosen to not take part or whether she had not been given sufficient support to engage.
- There was no explanation for why the presumption of capacity had been displaced.
Mr Justice Poole summarised that “Unfortunately in this case [the expert’s] evidence left the parties, the court, and even [the expert] himself, with some "disquiet". He then went on to provide guidance to those providing written reports to the Court dealing with how the report should be written and structured. He also gave Directions that a new expert should be instructed.
Other Key Findings
Professionals completing expert and Section 49 Reports on P’s capacity in Court of Protection proceedings may wish to consider the following guidance:-
- The expert should carefully consider (i) the terms of the Mental Capacity Act and Code of Practice, and (ii) the letter of instruction.
- The report should be structured in accordance with the Letter of instruction which should identify:
- the decisions under consideration,
- the relevant information for each decision,
- the need to consider the diagnostic and functional elements of capacity,
- the need to consider the causal relationship between any impairment and the inability to decide.
- If an expert is unsure on their instructions they should seek clarification.
- The expert should set out and apply the presumption of capacity and the other fundamental principles at section 1 of the MCA 2005.
- Where capacity for more than one decision is being considered, experts should make specific conclusions as to capacity for each decision rather than adopting a broad-brush approach. Opinions in relation to each decision must be consistent and coherent.
- An expert report should not only state the expert's opinions, but also explain the evidence and reasoning for each opinion.
- An expert should provide a full explanation if their opinion regarding P’s capacity changes following re-assessment or otherwise.
- If the expert relies on a particular exchange or something said by P during interview, an account of what was said should be included (the expert could consider whether to put the full transcript in an appendix).
- Any failure to take steps to facilitate P’s decision-making would be contrary to the fundamental principles of the Mental Capacity Act 2005. 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.
Please note the above is only a summary of the guidance. For the full guidance please refer to paragraph 28 of the full judgment.
We regularly provide training on the Mental Capacity Act 2005 to health and social care providers including to those who are providing Section 49 reports. For further information please contact Ruth Atkinson-Wilks.