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Persuading psychiatrists to get involved in a case
27.2Psychiatrists are medically qualified doctors that specialise in helping people with mental disorders. The vast majority of consultant psychiatrists in the UK do most or all of their clinical work in the NHS, and therefore lead busy professional lives. Why would anyone with such commitments be interested in taking on the additional role of being an expert witness for the Court of Protection?
27.3The simple answer might be because of the fee, or because it is a fairly local case and therefore easy to arrange. But there are other motivators instructing lawyers can appeal to. Psychiatrists working in psychiatric specialties where mental capacity is often an issue – such as psychiatry of learning disability or psychiatry of old age – may have developed a particular interest in Court of Protection work. For any psychiatrist, doing such work gives the opportunity to do a very thorough and detailed assessment of a case, and particularly in cases where an opinion about best interests is sought, it can be very appealing to be essentially speaking up for the person with a mental disorder. Those that are highly experienced in court work may relish particularly interesting cases where new case-law may be made. Others may welcome the whole court experience as something they can use to train junior doctors or other team members.
Instructions
Expertise
27.4The letter of instruction is obviously crucial to getting a report that addresses the issues you want. It is helpful to be explicit about the role of the expert in the case, and particularly which parties are instructing the expert. Questions need to be as clear as possible, and within the expertise of the psychiatrist. If you are not sure about what might be within their expertise, then it can be helpful to discuss this with the psychiatrist before the letter of instruction is finalised. Having said that, the diagnosis and treatment of mental disorder, and the assessment of capacity are core skills. Commenting on best interests can be within their expertise, particularly when it concerns directly, or has some bearing on medical or psychiatric assessment and treatment. Because of this concern about appropriate expertise, it is important to instruct a psychiatrist from the right subspeciality. As well as General Adult Psychiatrists, there are specialist psychiatrists for Older Adults; for Children and Adolescents; and for People with Learning (Intellectual) Disability. There are also Forensic Psychiatrists for people with mental disorder who are involved in criminal proceedings.
27.5Some psychiatrists focus almost exclusively on medico-legal work, and have developed great expertise in the technical aspects of report writing and giving evidence. However, if they have not been in clinical practice for some time, then their knowledge and skills about current psychiatric practice may be more limited, and their expertise brought into question.
Evidence of mental disorder
27.6When outlining the circumstances of the case, the medical and psychiatric history is highly relevant and any psychiatrist would be grateful for as much detail as possible in this area, and permission to access medical records is usually very helpful.
27.7An essential element to assessing capacity is determining whether there is a mental disorder present, and assessing the nature and severity of that disorder. Therefore any evidence of mental disorder is really helpful. Obviously this may include previous psychiatric assessments, but psychology assessments, especially psychometric assessments (eg IQ assessments), occupational therapy assessments (eg standardised assessments of skills) and speech and language therapy assessments (eg of communication skills) can all be very valuable. It is also helpful to have detailed descriptions of any recent events or behaviour that have led to concerns about the person being mentally unwell. Previous assessments of capacity are also essential material to include, as are details of any particular attempts that have been made to support decision making in the past.
Assessment of capacity
27.8Assessment of capacity requires a determination of the information needed to make the decision. It is therefore important to have all the background information relevant to the decision, such as social work reports or statements for welfare decisions, and medical reports for medical decisions. It is of course very helpful if the court has made a determination of the information needed to make the decision in the particular case or if there is any relevant case law about the type of decision in question (eg capacity to consent to sex, capacity to decide residence).
27.9In cases where there are disputes about capacity or best interests, there are often others involved who have a powerful influence on the person. Because this can substantially affect the ability to weigh information up in the process of making a decision (especially where capacity is borderline) it is important to know as much as possible about this. Sometimes where there are disputes about best interests, there can be significant mental health issues in the family (whether diagnosed or not) and it is very helpful to have full details of such concerns.
Practicalities
27.10It is important to give contact details for people the psychiatrist need to get history from, or will need to discuss best interests with, or who can assist in setting up the assessment. In order to maximise decision-making ability, it is often helpful to see the person in an environment with which they are familiar, and multiple visits may be required, depending on the complexity of the questions, and how the person is able to engage in the assessment.
27.11Having described above the sort of information that is very helpful to the assessment, this does not mean that the psychiatrist needs to see the whole court bundle, and judicious limiting of the reading is helpful, especially if opinions about best interests decisions are not required.
27.12Because the psychiatrist is likely to have many other commitments, it is important to set a realistic timetable for the assessment of at least a few weeks unless the clinical or social situation is very urgent.
Supporting the expert in court
27.13Many psychiatrists can be anxious about giving oral evidence in court, so it is very helpful if a clear idea of issues to be discussed can be given in advance so that they can prepare properly. Often psychiatrists will be asked questions in court that stray outside their area of expertise, and it is of course for the expert witness to point this out. However, it also helps not to be asked the question in the first place. Psychiatrists are usually happy to participate in meetings of experts, as this is more akin to clinical practice than the more adversarial court process. Finally, on a practical note, it is of course very helpful to fix dates and times as far in advance as possible, bearing in mind that if a case is listed for several days, psychiatrists in clinical practice are unlikely to be able to keep the whole period free, so guidance should be given about when their evidence is likely to be required.