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Fitness for Court: The Medical Examination - Dr Mark Burgin

18/08/21. Dr. Mark Burgin BM BCh (oxon) MRCGP explains that the basis of a medical examination assessing the fitness for court is disability.

The court requires those before it to engage with the process for justice to be done, simply being represented and present is insufficient.

The medical expert needs to be aware that the experience should not be ‘inhuman or degrading’ and reasonable adjustments are made for disabilities.

Although any process is open to abuse, solicitors typically ask for a report when their client is having genuine problems with attending court.

Poorly written reports that do not address the material issues can be seen by courts as an unnecessary distraction from the case.

Pain and fatigue

Few who have attended court will not have experienced the physical and psychological discomfort from the waiting for hours for something to happen.

Where the person already suffers from a painful condition or fatigue they may be able to engage for an hour or so but at some point the suffering will become too distracting.

Few courts are equipped with places to lie down to have a nap and taking medication typically dulls the senses rather than improves attention.

Reasonable adjustments such as having only morning or afternoon, preventing dehydration, alternatives to attendance such as written copies can all be recommended by the expert.

Psychological problems

Depression and anxiety typically do not cause major disruption but can increase distraction so they fail to process key elements or just say ‘yes’ to everything.

Agitation can occur from acute psychological illness, drug use, physical illness or personality problems and prompt assessment is recommended.

Post traumatic stress can be a hidden disability and typically causes a dissociative state where the person is no longer aware of what is happening around them.

Reasonable adjustments include breaks for the solicitor to check that they have understood and avoidance of cross examination if that will not assist the court.

Capacity

Capacity has two meanings that are commonly confused, the first is the ability or power and the second is a person's legal competence.

For the legal competence a person must be able to understand and retain for long enough to make a decision when being given support to do so.

Few people have the ability or power to deal with everything that could happen in a courtroom, but most have legal competence.

The medical expert’s role in these cases is to identify what support would reasonably be required to allow the case to proceed with the minimum of disruptions.

Conclusions

Disability is a continuum, the threshold at which a person is seen as disabled under the Equality Act 2010 is arbitrary but useful in practice.

The medical expert is not helping the court by recommending adjustments for every person who attends court but where there is real disadvantage, adjustments are reasonable.

The medical expert should be mindful that their role is to assist the court in the smooth running of justice and not to put obstacles in the court’s way.

Wherever possible evidence about disabilities should be provided in written form to save court time, even if the expert has to type the report up on their phone.

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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