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Capacity to present evidence, reasonable adjustments and intermediaries - Dr Mark Burgin

23/06/21. Dr. Mark Burgin BM BCh (oxon) MRCGP considers the impact on all areas of law of solicitors and barristers being side lined by disability arguments.

It is accepted law that those who are disabled should not be disadvantaged as a result of that disability. This does not mean that disabled people are protected from any disadvantage even where non-disabled people would also suffer the same disadvantage. Nor does it mean that a disabled person who is disadvantaged due to another (non-disabled) aspect of their character can receive assistance. It is therefore central to any report on capacity to give evidence to establish both disability and consequent disadvantage.

Disability analysis has an advantage over psychologist or psychiatric methodologies because it clearly separates these issues (as well as being able to deal with physical and psychological problems). There is a risk that the psychological expert will conflate a clinical diagnosis with disability. This leads the court being told that the person is ‘disabled’ rather than their restrictions being described. The court needs to understand what restrictions are present to properly consider the suggested reasonable adjustments.

Many people have mild functional restrictions in areas of physical, mental or hidden functioning. At present it is not mandatory to make adjustments for these people. It is only where these restrictions become moderate (substantial) and cause problems in the activities of daily living that they are considered disabled. Unless the person is disabled then any disadvantage they may suffer is not protected in law. This is reasonable because few people do not have some disadvantage when compared with others. The expert’s role is to determine whether functional restrictions are significant and need protection or are not.

Capacity to present evidence

Whether a person can present evidence when in court is reasonably straightforward as there is a procedure to follow. The person must be able to understand the relevant information, retain, make a decision and communicate that decision. Some experts believe that all capacity assessments should follow this procedure and will find that giving evidence has fairly low threshold. Few people called to court will not be able to answer questions about the matter before the court. There is however a point of view that suggests the problem is not with person but the courts.

Some experts opine that the person is likely to be influenced under cross examination to give evidence they do not believe. In a sense these experts are suggesting (perhaps correctly) the person’s legal team are incapable of protecting them. These experts are perhaps personally familiar with some of the techniques used by legal professionals. Court reports also suggest that even experts are suggestible and find the evidence they give contaminated. By this standard, few witnesses (even experts) have the capacity to present evidence in the UK courts.

Is it really the expert’s role to second guess the manner in which the person will be asked to give evidence in the UK? Many experts believe that barristers are out of control, asking questions that contain fallacies and allowed to get away with it by the judges. Whether this is true is for the legal establishment to reflect upon, but most experts have experience of vulnerable people who were interrogated by barristers who did not let them speak. In the new world of #Metoo this behaviour is unlikely to be acceptable, as well as ineffective at achieving justice.

Restrictions

The first common restriction is learning difficulties where the person struggles to follow the case. Although experts exhort the court members to slow their speech and use simpler words this is rarely adequate to ensure the person understands. It is better to ensure that the person is given support from their solicitor. Solicitors are highly experienced in explaining complex legal issues to their clients. This may mean that there needs to be short recess to allow the conversations to occur. As these reasonable adjustments are built into the process the expert cannot do more than recommend that they are followed.

A second common restriction is where the person has a failing or no memory of the events. This might be due to excessive delay, the reasonable adjustment is to allow video cross examination close to the time of the event. Where the person has one of the many memory problems the expert’s role is to explain the mechanism of that memory difficulty to the court. Without a clear explanation of the source of the memory problem the person would be at a disadvantage. Most memory losses are associated with at least short-term disability. The reasonable adjustment for memory loss is the disability assessment itself.

A third common restriction is where the person has failing health which means that they have difficulties with traveling and sitting in court and communication. It is often helpful for such a person to have someone sitting next to them who can act as an ‘interpreter’. A person with a quiet voice or a person with hearing problems can have the unheard words repeated. Few people would not be able to attend with a door to door taxi and a wheelchair. Many courts are realising that offering a virtual appointment has advantages.

A fourth common restriction is where there are significant mental health problems and personality disorders. The restrictions are often severe during an episode but when the person is stable they are mild. Psychological experts will be torn between the evidence that suggests that they are not disabled and a desire to protect the person from attack. Although many will suggest an intermediary as a reasonable adjustment this does not address the source of the disadvantage. Those with PTSD (e.g. from childhood abuse) are at particular risk that they will disassociate during the trial or have a violent outburst.

Reasonable Adjustments

The role of the intermediary is unclear, are they to object to unreasonable questions and usurp the role of the barristers? Should they rephrase questions that contain fallacies so that they can be answered? Should they just act as a brake on intense questioning? There are arguably better methods for protecting vulnerable witnesses at the court’s disposal. The expert should try to avoid anything that disrupts the court’s work. Experts often forget that their overriding duty is to the court and can get into ‘medical mode’ putting their ‘patient’ first. The person is not a patient and the expert cannot protect the person from their responsibilities.

The solicitor is usually in the best position to provide additional support to those who require it. For the majority of people who go to court it is their support that is essential. Many legal practices hand over litigation to a separate team and if disability is suspected should instruct a disability analyst to provide advice on reasonable adjustments. In some cases the person will be disabled and require formal reasonable adjustments to prevent significant disadvantage. Many other cases the report will allow the team to be able to properly support the person during giving evidence.

The best adjustments are those which improve the evidence in all court cases not just those with restrictions and disabilities. Allowing the witness to tell their story is more likely to reveal the truth than hostile cross examination. Allowing a witness to pause and catch their thoughts is better than pressuring them to remember something that is only vaguely recollected. Using the person’s own words rather than putting ‘clarifications’ to them is more difficult but more effective. There are situations where a raised voice, sarcastic comment or intense questioning is appropriate but these are rare.

Conclusions

There is a general belief that courts are unnecessarily adversarial and this leads to bullying behaviour being normalised. Experts have often had traumatic experiences which colours their opinions on whether the person that they are assessing has capacity to give evidence. Experts are increasing resorting to use of burdensome adjustments rather than challenging of bullying behaviour in courts. This is leading to an arms race where both sides are becoming entrenched rather than open to reason. In many courts it is the loudest voice that wins the day.

Part of the problem is that disability assessments are often vague and unhelpful. Rather than considering capacity using the formal system the expert offers a subjective view. The person’s functional restrictions are not clarified and little or no reasoning is offered to explain the adjustments. The experts appear unaware of the court’s needs or their duty to the court. Many reports put barriers to the court process which offer little benefit to the person. The courts can become impatient with trying to make adjustments which seem far from reasonable.

In the middle of this conflict are people who are being disadvantaged by their disabilities. Experts should be instructed to consider what functional restrictions are present whether physical, mental or hidden. The severity of each functional restriction should be addressed and the likely biopsychosocial cause discussed. Where an adjustment is necessary it should be the least restrictive to the court process. These instructions will ensure that experts properly address the issues material to the court. They will also ensure that voices of the vulnerable people in the court system are heard.

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

Image ©iStockphoto.com/JodiJacobson

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