Commentary
The task for the expert in this case was enormous. Capacity is issue specific. This means that if the issue is someone’s capacity to conduct legal proceedings, in this case sixteen sets of proceedings, the expert has to consider each set of proceedings. The person may have the capacity to conduct some and not others.
Learning points:
-
In civil proceedings an expert’s report must comply with CPR rule 35.10 (‘Contents of report’) and Practice Direction 35.
-
If there is no letter of instruction, it is necessary to state the substance of all oral material instructions.
-
A comprehensive review of the records is required, not just of some of the relevant medical records.
-
The question of capacity to conduct proceedings depends in part on the proceedings involved.
-
Whether or not a litigant is able to understand, retain, and use or weigh the information relevant to the decision may vary depending on the decision.
-
Identify which of the various cases is covered by the certificate.
-
Explain how the person’s mental disorders affect his capacity to (a) understand, (b) retain, and (c) use or weigh the information so as to leave him unable to make decisions and conduct the proceedings.
-
A bald assertion in the certificate that the person has been unable to conduct litigation for fifteen years has to be supported by an analysis or explanation.
Case
Whether an order should be set aside on the grounds that the appellant, Mr Kenneth Johnston, lacked capacity at the material time to conduct proceedings arising from his allegation that the Financial Ombudsman Service had acted in breach of the Equality Act by failing to make reasonable adjustments having regard to his entitlement to the statutory protection provided to a person with disabilities under the Equality Act 2010..
Expert medical evidence
There were a number of deficiencies and difficulties in the evidence about capacity presented to this Court. A preliminary point was that none of the reports complied fully with the requirements for expert evidence in CPR rule 35.10 (‘Contents of report’) and Practice Direction 35. In addition, and more importantly, there were deficiencies in the evidence of Dr B on which Mr Johnston relied to rebut the presumption of capacity.
First, there were deficiencies in the manner in which Dr B was instructed to conduct the assessment. There was no letter of instruction either for the report produced in July 2023 or for the certificate signed in September 2023. Furthermore, it seemed from the July report that Dr B only had access to some of the relevant medical records. There is nothing in the September certificate to suggest that, before signing the certificate, he had an opportunity for a comprehensive review of the records recommended by Poole J in Public Guardian v RI and Others.
Secondly, the certificate signed by Dr B failed to identify at all the proceedings in respect of which he was certifying that Mr Johnston lacked capacity. Mr Johnston has engaged in a number of proceedings – according to Dr Rao's September report, he spoke of being involved in sixteen court cases. The question of capacity to conduct proceedings depends in part on the proceedings involved. Whether or not a litigant is able to understand, retain, and use or weigh the information relevant to the decision may vary depending on the decision and the information involved. Dr B's certificate does not identify which of the various cases in which Mr Johnston was apparently involved is covered by the certificate.
Thirdly, the certificate did not explain how Mr Johnston's mental disorders affected his capacity to understand, retain, and use or weigh the information so as to leave him unable to make decisions and conduct the proceedings. Some of the comments in the certificate amount to no more than a repetition of the diagnosis with no or no sufficient explanation of how the disorders affect his abilities. Indeed, it is unclear from the certificate whether Dr B was in fact saying that Mr Johnston was unable to understand, retain, and use or weigh the information. In some respects, the text inserted in the boxes in Part 2 suggested that his abilities depended on whether he was supported and provided with reasonable adjustments.
Fourthly, the certificate referred to the earlier report prepared a few weeks prior to the certificate in July 2023. The conclusion in that report, however, was that, whilst Mr Johnston did not have capacity to conduct legal proceedings by himself without a legal representative, he did have the capacity to instruct a lawyer to act for him in his legal affairs.
Fifthly, the bald assertion in the certificate that Mr Johnston has been unable to conduct litigation since 2010 was unsupported by any analysis or explanation. An assertion that he had lacked capacity for thirteen years required some explanation, by reference to the evidence considered by Dr B who had not met Mr Johnston before July 2023. The certificate contained no such explanation, and the July letter to which it referred contained only a brief summary of extracts from the medical records which had been supplied by Mr Johnston himself. There was, for example, no reference to anything between 2010 and 2016. In those circumstances, it is difficult to understand how Dr B was able to say that Mr Johnston had lacked capacity since 2010.
Outcome
The court was wholly unpersuaded that it had been established on behalf of Mr Johnston that he lacked capacity at any material time.