High Court: (a) refuses to declare that a defendant lacked capacity where the only clinical evidence was that of a treating psychiatrist based on a short discussion with his patient, and where no independent expert evidence had been adduced; but (b) sets aside judgment obtained in default, in order to allow the defendant to file a defence.
Fox v Wiggins & Ors [2019] EWHC 2713 (QB) (16 October 2019)
Claim of defamation and harassment – judgment obtained against one defendant – applicaton by her mother for a declaration that she lacked capacity – an order asetting aside judgment – reliance on letter from treating psychiatrist – further letter – reliance on expert evidence – avoidance of ‘protection imperative’ –
“(7) In assessing the question of capacity, the court must consider all the relevant evidence. Clearly, the opinion of an independently instructed expert will be likely to be of very considerable importance, but as Charles J observed in A County Council v KD and L [2005] EWHC 144 (Fam) [2005] 1 FLR 851 at paras 39 and 44, ‘it is important to remember (i) that the roles of the court and the expert are distinct and (ii) it is the court that is in the position to weigh the expert evidence against its findings on the other evidence… the judge must always remember that he or she is the person who makes the final decision’.”
“To determine whether, at the date on which the court is considering the matter, the person has or lacks capacity to make the decision in issue, the Court must consider all the relevant evidence, including but not limited to evidence from an independent expert:
“Clearly the opinion of an independently-instructed expert will be likely to be of very considerable importance, but in many cases the evidence of other clinicians and professionals who have experience of treating and working with P will be just as important and in some cases more important In assessing that evidence, the court must be aware of the difficulties which may arise as a result of the close professional relationship between the clinicians treating, and the key professionals working with, P.,….in cases of vulnerable adults, there is a risk that all professionals involved with treating and helping that person — including, of course, a judge in the Court of Protection — may feel drawn towards an outcome that is more protective of the adult and thus, in certain circumstances, fail to carry out an assessment of capacity that is detached and objective.”” [Per Baker J in PH v. A Local Authority [2011] EWHC 1704 (COP) at 16]
“The Claimant submits that neither of Dr Inspector’s letters comply with the requirements of CPR Part 35 in relation to expert evidence. He says that the Sixth Defendant has not provided Dr Inspector’s curriculum vitae or any evidence as to his specialisms. He also says that there has been no compliance with CPR r 35.10.
These criticisms are misplaced. I accept Dr Inspector is a duly qualified psychiatrist who has been treating the Sixth Defendant for a number of years. And he is not purporting to act as an expert: he is the Sixth Defendant’s doctor and his duty is to advance her best interests.”
“Having regard to the evidence that is before me, I am not satisfied that the Sixth Defendant has discharged the burden on her to show on the balance of probabilities that she currently lacks capacity, or did so between 4 May 2018 and now. I accept that she has a number of physical and mental ailments. I accept that being confronted with this litigation is stressful for her. However, at a minimum, I would have expected that Dr Inspector would have had a full consultation with the Sixth Defendant and considered the litigation with her, and then reported properly, fully and completely on his findings as to her ability to conduct litigation with reference to the tests for capacity under the MCA 2005 and the principles to which I have referred. He did not do that, but merely provided a brief opinion based upon what appears to have been a short discussion with his patient. Given the time which has passed since May 2018 (at the latest) when this issue first emerged I would also have expected expert evidence about the Sixth Defendant’s mental state. There is none. I agree with the Claimant’s submission that I am prevented from carrying out any detailed analysis of the evidence with regard to the tests under the MCA 2005, because there is no evidence to analyse other than Dr Inspector’s bare assertions and Ms Lawrence’s generalised evidence.”