Dr Imran Waheed

Fluctuating Capacity

When undertaking medico-legal work, one of the areas that I frequently consider is litigation capacity i.e. an individual’s ability to understand, engage in or follow litigation proceedings. 

The general approach of the common law, confirmed in the Mental Capacity Act 2005, is that capacity is to be judged in relation to the decision or activity in question and not globally.  Hence it was concluded in Masterman-Lister that capacity for this purpose meant capacity to conduct the proceedings (which might be different from capacity to administer a large award resulting from the proceedings).

Conducting proceedings is not usually a specific one-off act so in cases where an individual’s mental state fluctuates, the issue of fluctuating capacity is something that needs to be given due consideration.  Conducting proceedings requires an individual to maintain capacity on an ongoing basis and take decisions sometimes at short notice.  During such a period, the individual would need to be able to give instructions, read relevant paperwork and weigh up alternative courses of action.

The Mental Capacity Act Code of Practice addresses the issue of fluctuating capacity.  It recognises that some people have fluctuating capacity as a result of “a problem or condition that gets worse occasionally and affects their ability to make decisions” (the examples given are “manic depression”, a psychotic illness and certain temporary factors). The Code of Practice indicates that a person with fluctuating capacity may be supported to make the decision (paragraph 4.26) and it may be possible to put off the decision until the person has the capacity to make it (paragraph 4.26).

I recently assessed a patient who suffered from emotionally unstable personality disorder who when in a “good place” might well be regarded as having capacity.  However, the patient’s mental [...]

The Assessment of Malingering

“There were no real demons, no talking dogs, no satanic henchmen. I made it all up via my wild imagination so as to find some form of justification for my criminal acts against society” [“Son of Sam” serial killer David Berkowitz].

Deception is a frequent behaviour that occurs in day to day life. In the setting of the doctor-patient or lawyer-client relationship, self-disclosure is rarely complete and accurate and individuals are selective about how much they share with others.

Malingering has been defined by the American Psychiatric Association as “the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives”. Malingering itself is not considered to be a form of mental illness or psychopathology but although it can occur concurrently with mental illness.

According to DSM-IV-TR, malingering should be strongly suspected if any combination of the following factors is noted to be present: (1) medico-legal context of presentation; (2) marked discrepancy between the person’s claimed stress or disability and the objective findings; (3) lack of cooperation during the diagnostic evaluation and in complying with the prescribed treatment regimen; and (4) the presence in the patient of antisocial personality disorder (ASPD). However, criticism has been levelled against this criteria and some have suggested that they result in a misclassification rate of over 80%.

The distinction between malingering, factitious presentations and feigning is not always well understood. In contrast to malingering, factitious presentations are characterised by the intentional production or feigning of symptoms that is motivated by the desire to assume a “sick role”. Feigning is the deliberate fabrication or gross exaggeration of psychological or physical symptoms without any assumptions about its goals.

Malingering is important from a clinical and medico-legal perspective. In my own clinical practice, it is not uncommon to [...]

Mental Health Act: Nature or Degree of Mental Disorder

The Mental Health Act attaches great significance to the “nature or degree” of mental illness.  Any psychiatrist who has ever appeared before the First Tier Tribunal will be well aware of the importance of these terms in the Tribunal’s decision making.

In broad terms, ‘nature’ is the course of a disorder and the consequences of it while ‘degree’ is the presentation at that point in time.

The Explanatory Notes for the Mental Health Act 2007 note that “Case law has established that “nature” refers to the particular mental disorder from which the patient is suffering, its chronicity, its prognosis, and the patient’s previous response to receiving treatment for disorder. “Degree” refers to the current manifestation of the patient’s disorder (R v Mental Health Review Tribunal for the South Thames Region ex p. Smith [1999] C.O.D. 148).”

When undertaking assessments under the Mental Health Act in the community, in some cases the patient appears to be symptom free and there is little evidence of ‘degree’.  However, in some cases it is necessary to rely on the ‘nature’ of the disorder, particularly where there is an established diagnosis and where there would be risk to the patient or others if they were not treated.  Commenting on this very issue, Lady Justice Hale, said, “There are of course mental illnesses which come and go, but where there is a chronic condition, where there is evidence that it will soon deteriorate if medication is not taken, I find it impossible to accept that that is not a mental illness of a nature or degree which makes it appropriate for the patient to be liable to be detained in hospital for medical treatment if the evidence is that, without being detained in hospital, the [...]

Fitness to Plead: The Pritchard Criteria

It is interesting that the question of the accused being unfit is dealt with using the 1836 criteria of R v. Pritchard. In Pritchard, the accused was deaf, unable to speak and was charged with bestiality.

In Pritchard the jury were directed that in order to be sane the accused must be, “Of sufficient intellect to comprehend the course of proceedings in the trial so as to make a proper defence, to know that he may challenge  any of you to whom he may object and to comprehend the details of the evidence.”

Expert witnesses who are instructed to examine the accused regarding fitness to plead must therefore address these criteria. The accused should have the ability to plead to the indictment, understand the course of the proceedings, to instruct a lawyer, to challenge a juror and to understand the evidence.

In John M(2003) the criteria were further expounded. The jury were directed that it was sufficient for the defence to persuade the jury on the balance of probabilities that any one of the following things was beyond the defendant’s capability: (1) understanding the charges; (2) deciding whether to plead guilty or not; (3) exercising his right to challenge jurors; (4) instructing solicitors and counsel; (5) following the course of proceedings; and (6) giving evidence in his own defence.

The criticism is that the Pritchard criteria set too high a threshold for a finding of unfitness to plead. The concern remains that there are significant numbers of mentally ill defendants who undergo trial and may be doing so unfairly.

7 Tips for Finding the Right Psychiatric Expert

In R v Turner (1975) 60 Cr. App. R. 80, Lawton LJ stated: “…the fact that an expert witness has impressive scientific qualifications does not by that fact alone make his opinion on matters of human nature and behaviour within the limits of normality any more helpful than that of the jurors themselves; there is a danger that they think it does…Jurors do not need psychiatrists to tell them how ordinary folk who are not suffering from any mental illness are likely to react to the stresses and strains of life.”

The psychiatric expert witness is a witness who provides to the court a statement of opinion on any admissible matter calling for expertise by the witness and is qualified to give such an opinion; “An expert’s opinion is admissible to furnish the court with the scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary.” (R v Turner [1975] 1 All ER 70)

When instructing a psychiatric expert, it may be helpful to consider the following 7 tips:

1. Do you need an expert?

If a bench or jury is going to be able to decide upon the case by listening to or viewing the evidence and bringing to bear their own senses, knowledge and experience, then no expert is needed.

In my experience, it can be useful to have an initial conversation with the instructing professional to establish whether expert psychiatric evidence is likely to assist the Court. Of course, if it is unlikely to be helpful, valuable time and money can be saved.

2. When is an [...]