PROVING THINGS 249: APPELLANT FAILS TO PROVE LACK OF CAPACITY: SHORTFALLS WITH THE EXPERT EVIDENCE

In Cannon v Bar Standards Board [2023] EWCA Civ 278 the Court of Appeal held that expert evidence placed before it failed to establish that an appellant lacked capacity.  The case provides importance guidance about the nature and quality of the evidence needed to establish lack of capacity.

 

“There is no proper evidential basis for that conclusion. It amounts simply to an assertion that because the appellant had post-traumatic stress disorder she lacked capacity to attend and participate in proceedings.”

THE CASE

The appellant appealed against a decision of the Bar Disciplinary Tribunal which led to her disbarment.  Part of her appeal was based on on an argument that she did not have capacity at certain times.  As part of the appeal she applied for permission to rely on medical evidence from two experts.  The Court of appeal refused the application to rely on new evidence.

THE COURT OF APPEAL’S OBSERVATIONS ON THE EVIDENCE

There is a presumption of capacity. The Court of Appeal found that the new evidence did not displace this presumption in any event.

25. The appellant relies significantly on two reports from Dr Acosta. The first is dated 20 September 2020. So far as one can ascertain from the report, the consultant was instructed to carry out a psychiatric assessment with the aim of commenting on diagnosis, any impact of that diagnosis on the appellant’s professional conduct at the time of the allegations, capacity to attend proceedings in January 2020 and capacity to make a statement and attend the appeal hearing in October 2020. There are significant difficulties with this report. Dr Acosta does not in this report specifically address the test, or all the relevant factors, for assessing capacity. Dr Acosta had access to some of reports that had been prepared in relation to the appellant. However, as Dr Acosta noted at paragraph 30 of her second report, she did not have access to the appellant’s GP or other psychiatric records as the appellant declined to allow access to these documents. As Dr Acosta recognises, the fact that she did not have access to these records impacted on her ability to have a full picture of the appellant’s psychiatric problems and presentation. In addition, Dr Acosta either did not know, or did not address, the various actions that the appellant did undertake in relation to the disciplinary proceedings in January 2020 in order to consider whether the appellant understood the information relevant to decisions relating to the proceedings, was able to retain that information, was able to use or weigh that information and was able to communicate decisions.
    1. The fundamental difficulty with the September 2020 report, however, is this. Dr Acosta considers that since 2007 the appellant has developed underlying mental health conditions including, in particular, post-traumatic stress disorder said to result from abuse from the father. She considers that the severity of the appellant’s mental illness was not always the same and there were periods, of variable duration, where the appellant was not as severely affected by her symptoms and was able to function well enough to do things such as write a book, or submit applications to court. The ability to function depended on the appellant’s perception of danger and risk from the father which, whether true or not, impacted on her mental state. Having said that, Dr Acosta then concluded:
“104 Regarding attending proceedings in January 2020 at Bar standards association: in my opinion [the appellant] lacked capacity at the time to attend and participate in proceedings, due to the severity of her mental health problems, namely Post Traumatic Stress Disorder (PTSD”). The severe symptoms of avoidance of triggers for the flashbacks and nightmares, namely anything related to [the father] prevented her from being able to leave her home. I also believe that she wouldn’t have been able to follow the proceedings due to the same reasons plus her attention and concentration difficulties, part of her ADHD, not even diagnosed at the time”.
    1. There is no proper evidential basis for that conclusion. It amounts simply to an assertion that because the appellant had post-traumatic stress disorder she lacked capacity to attend and participate in proceedings. Dr Acosta does not seek to assess whether the appellant was capable of understanding information relevant to the proceedings, retaining and using that information, or communicating decisions. The reference to ADHD is difficult to understand. That appears to be a reference to the report by Ms Licht, a psychologist who diagnosed ADHD. That report, however, considers the possible impact of that condition on the appellant’s behaviour in respect of the conduct during 2014 to 2016 which gave rise to the allegations of professional misconduct. There is no assessment of the relevance of any diagnosis of ADHD to capacity. Further, and significantly, given Dr Acosta’s expressed views that the severity of the condition varied, it is difficult to see on what basis Dr Acosta concluded in September 2020 that the appellant lacked capacity in January 2020. The appellant may well have had mental health difficulties over a number of years. She may have had difficulties in addressing professional misconduct charges relating to events that involved the father. The report of September 2020, however, does not itself provide a proper evidential basis for rebutting the presumption that the appellant had capacity to take the decisions necessary to enable her to participate in the January 2020 proceedings.
    1. Dr Acosta prepared a further report dated 22 February 2021. She was specifically asked, amongst other things, how she could be confident of the position at the time of the hearing in January 2020 if the appellant’s condition was variable. At paragraph 102 of the report, Dr Acosta stated that she “was confident of [the appellant’s] presentation at the time of the BSB hearing (and her lack of capacity” due to a number of factors. Two relate to the appellant’s description of symptoms at January 2020 and the corroboration of her presentation at that time by Ms McDougall. That is a reference to paragraph 51 of the report where Dr Acosta records the appellant as saying that during the hearing and approaching it, the appellant was frightened as she did not know where the father was. That falls far short of evidence of incapacity to take decisions relating to proceedings. It confuses, or merges, fears arising from the symptoms with the different question of whether the appellant can understand, retain and use information, reach decisions and communicate them.
    1. That is also reflected in the third and fifth reasons that Dr Acosta gives, namely the appellant’s presentation was the same before the appeal hearing in October 2020 (which Dr Acosta regards as a similar event with similar stress factors to the January 2020 hearing). Dr Acosta concludes that the appellant would have lacked capacity due to the symptoms such as daily panic attacks and the feeling of being paralysed by the idea of the father’s presence. That, however, is again to confuse questions of capacity with the question of ensuring a fair hearing where a person has vulnerabilities. Dr Acosta then deals with the first half-day of the appeal hearing in October 2020. She refers to the appellant’s presentation of panic (it is not clear how that was displayed as we are told that the hearing was a remote hearing and the appellant did not have to appear on screen) and what Dr Acosta describes as her “almost lack of ability to communicate” with Dr Acosta. No details are given of what communications are being referred to or how that affected her ability to understand, retain and use information. The conclusion is that those factors in Dr Acosta’s opinion “diminished [the appellant’s] capacity to instruct counsel during the proceedings”. It is noteworthy that Dr Acosta does not say that the appellant lacked capacity, simply that that was “diminished”. It is not clear what is meant by that. Reading the September 2020 and February 2021 reports individually, and together, they do not begin to provide a proper evidential basis for concluding that the presumption that the appellant had capacity to participate in the disciplinary proceedings culminating in the Tribunal hearing in January 2020 is rebutted. Participation may have been difficult and adjustments might have had to be made to ensure, for example, that the appellant did not see the father as recommended by Dr Isaacs. That is not, however, the same as saying that the appellant lacked capacity to take the decisions necessary to enable her to participate in the disciplinary process.
    1. The appellant also seeks to rely on a witness statement dated 16 May 2021 made by Iona McDougall who has been employed as the appellant’s personal assistant since 2015. Ms McDougall describes the events of 22 to 24 January 2020 but principally focusses on events after that hearing. Ms McDougall is not, and does not suggest, that she is qualified to assess whether or not the appellant lacked capacity to participate in the disciplinary process in January 2020. Her evidence on what was happening, and her observations of the appellant at that time, do not establish that the appellant lacked capacity at that time.
    1. The appellant also sought to rely on a report by Dr Cumming. He had not assessed the appellant. He was asked to comment on the two reports of Dr Acosta. In relation to the first report, he says that he had no reason to doubt the diagnosis of post-traumatic stress disorder but noted that Dr Acosta had seemed to accept the formulation around ADHD and there was no exploration of that issue. On capacity, Dr Cumming noted that Dr Acosta had made an argument about capacity but without meeting the appellant, Dr Cumming said it was difficult for him to challenge the finding. He then deals with the second report where Dr Acosta considered that the appellant had capacity to understand the charges and advice and then focused on the capacity to give instructions. In his opinion, he makes it clear that he is commenting on the reports and that there are limitations on what he can say about the reports particularly as he had not assessed the appellant. He also notes that retrospective reports can be hazardous as the mental state of patients can vary over time. He concluded that he had no reason to doubt Dr Acosta’s diagnosis of the appellant, that capacity was specific to the decision required and varied over time, that there were different views expressed about capacity, but he had no reason to consider that Dr Acosta’s findings were inaccurate.
    1. The question for this court is whether the appellant lacked capacity to participate in the disciplinary process in January 2020. Dr Cumming cannot and does not express a view about that question. His report reviewed Dr Acosta’s report but, given the limitations inherent in that exercise, and the fact that he had not assessed the appellant, he had no basis on which he could express the view that her findings were incorrect. I do not consider that report assists in assessing whether or not the appellant did lack capacity at the material time in the relevant respects.
    1. For all those reasons, and considering all the evidence, individually and cumulatively, and including, in particular the two reports of Dr Acosta, I am satisfied that there is no proper evidential basis for concluding that the presumption that the appellant had capacity to take the decisions necessary to enable her to participate in the disciplinary process culminating in the Tribunal hearing in January 2020 is rebutted.
  1. There is a difference between questions of capacity and the fairness of proceedings. A person may well have vulnerabilities arising from underlying mental health conditions. Those may require adjustments to ensure that proceedings are fair. Special measures may need to be taken to accommodate a witness with vulnerabilities or who has a fear of being present at a hearing with a particular person. There may need to be an adjournment because of physical or mental conditions. In the present case, the difficulties that have been identified in relation to the appellant are ones that were relevant to the way in which the disciplinary process might need to be conducted to ensure fairness (as Dr Isaacs pointed out in his assessment of September 2019). They do not provide a sufficient basis on which to conclude that the presumption of capacity has been rebutted. In the present case, the appellant’s solicitors sought an adjournment on the basis of her physical condition and the fact that she also had to deal with a second hearing in that week but no adjournment was sought by them on the basis of her mental health. The adjournment was refused and there has been no appeal against that decision. The appellant could have participated in the disciplinary process by, for example, providing her witness statement by the 19 November 2019 (as ordered) but did not do so. Problems at any hearing, including concerns about being present in the same room as the father could have been addressed (in fact, we are told that he gave evidence by video link). There has, however, been no complaint about the fairness of the disciplinary process.