PI Brief Update

The Impact on PI Law of The New Sentencing (Equality) Guidelines - Dr Mark Burgin

29/09/20. Dr. Mark Burgin BM BCh (oxon) MRCGP explains how the move to Disability Analysis Reports (DAR) in The New Sentencing Guidelines will change Equality Act 2010 issues in PI law.

Legal practitioners who are not working in the criminal justice system may be forgiven for believing that the latest sentencing council advice does not apply to them.

The Sentencing Offenders with Mental Disorders guidelines are an effort to apply the Equality Act 2010 to the process of sentencing.

Although it has been widely recognised that many people attempting to obtain justice are disabled there are few policies to ensure that they are not disadvantaged by the systems.

In personal injury the rise of the litigant in person (LiP) has brought this issue into the court room with judges at the sharp end of decisions about disability.

There has also been increasing concern across all the legal fields about litigant’s ability to participate and understand their legal proceedings.

The Medical Report

Sentencing guidelines state that “where the offender is or appears to be mentally disordered at the date of sentencing the court must obtain and consider a medical report.”

The guidelines point out correctly that sentencing should be individualistic, many mental disorders are not easily recognisable and there may be comorbidity.

The guidelines are less clear about the purpose of the report stating that culpability may be reduced, community orders may be appropriate or a custodial sentence disproportionate.

The guidelines focus on impairments and are clear that these different from disorders, in disability analysis an impairment arises from a functional restriction.

There is a significant focus in the guidelines on mental health rehabilitation, but a psychiatric Medical Report may only be able to give general advice about treatment.

Impairments

The difference between a medical diagnosis and an impairment can be confusing to the non medic, for example the medical diagnosis of stroke does not explain how the patient is disabled.

The stroke might cause social disinhibition or paralysis, however when a full disability analysis has been performed is clear what disabilities the stroke has caused.

Additionally two patients with exactly the same stroke can have significantly different impairments if, for instance their lifestyles or coping mechanisms are different.

The courts need to know all of the disabilities and how they interact with the case and whether reasonable adjustments will improve outcomes.

The Disability Analysis Report (DAR) considers the 16 areas of functional restriction, the causes of those restrictions and describes the impairment in each area.

Personal Injury

The first principle of disability is that ‘it is the system that disables the person’, the legal system is too complex for ordinary people to understand.

There have been some steps to reduce the complexity of PI claims for instance increasing use of accessible IT and making medical reports mandatory at the start of a claim.

There are some situations that even with improved systems some claimants will be disadvantaged due to their disabilities, unless the court is aware and can make allowances.

Without a Disability Analysis Report (DAR) there is a risk that the disadvantaged claimant will turn to a professional negligence lawyer to challenge the outcome.

Where a disabled claimant has been disadvantaged it is often clear from review of the documents that the claimant’s legal team was aware of their problems.

Conclusions

The previous system of ‘section 12’ psychiatric reports was costly, time consuming and generally unhelpful to the court as it did not address the issues.

Disability Analysis Reports are cheaper, more rapidly obtainable and provide clear advice to the court about matters of interest.

The increasing focus that the New Sentencing Guidelines puts upon impairment is sending reverberations throughout the whole justice system.

PI lawyers who have concerns that behaviour or memory problems might disadvantage their client should proactively arrange a Disability Analysis Report.

This will prevent any satellite litigation and improve the ability of the court to intervene when it appears that the claimant is being disadvantaged.

Doctor Mark Burgin, BM BCh (oxon) MRCGP is on the General Practitioner Specialist Register.

Dr. Burgin can be contacted on This email address is being protected from spambots. You need JavaScript enabled to view it. and 0845 331 3304 website drmarkburgin.co.uk

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