Commentary

Like the Decker v Hopcraft [2015] EWHC 1170 (QB), [2015] 4 WLUK 649 (in the Compendium) this is a judgment of particular relevance to general practitioners, although for reasons explained in the summary of Decker, other medical practitioners may be required to provide evidence as to their patient’s fitness to take part in legal proceedings. This summary should be read along with that of Decker as this summary does not include the tests set out in Levy v Ellis-Carr [2012] EWHC 63. They are set out in the Decker summary.

The importance of this case is that it confirms that medical practitioners providing evidence as to a patient’s fitness to participate in legal proceedings are providing expert evidence. It may be termed ‘professional’ evidence but it is expert evidence. It is expert evidence because the medical practitioner is assisting the court as to matters outside the knowledge and experience of the court. In this case the court depended on the applicant’s general practitioner to understand complex PTSD, spiking of blood pressure to dangerous levels and dysphonia and how they made the applicant unfit to participate in her appeal against the order made by the court as to the disposal of her son’s ashes.

As expert evidence, the general practitioner’s evidence had to be independent and the court found that it lacked the requisite quality of independence to be treated as expert evidence. This was not least because the general practitioner’s letters read as if they were written by the applicant rather than an independent doctor.

A further issue was that the general practitioner appeared to have accepted as fact allegations that the applicant made about her ex-partner. It is one thing for a general practitioner to document what a patient says about domestic abuse or violence but it is quite another to assume that what the patient has said is true. It may or may not be. Similarly, by characterising the proceedings as an attempt by her ex-partner to continue to exert controlling behaviour was at odds with the fact that this was actually the applicant's appeal. This illustrates the importance of the medical practitioner understanding the nature of the proceedings (see summary of Decker).

As the judge indicated, the medical evidence was deficient. There was a reference to the applicant’s blood pressure spiking to dangerous levels but none of the letters referred to a consultation with the applicant, her blood pressure or the evidence that it spiked to dangerous levels.

The evidence was also deficient as to prognosis. There was no explanation as to the predicted recovery of fitness to participate in July 2026. 

Learning points (in addition to those set out in the summary of Decker):

•               Medical evidence as to fitness to participate in legal proceedings is expert evidence; as such it is a requirement that it should be independent.

•               If a party wishes to rely on medical evidence, it needs to be put before the court in a form it can be shown to the opposing party so that the opposing party has an opportunity to address it.

•               In an appropriate case it may be appropriate to have redactions or some other steps which are taken to conceal truly confidential or private information.      

To continue reading you must be an EWI member, become a member and access exclusive content. 

Already a member? Login