Commentary
This is an important judgment for any psychiatrist called upon to assess fitness to plead and stand trial in a criminal case or litigation capacity in a civil case; and important also for any psychologist whose evidence may be considered in such a case. It is not just because it compares the tests for fitness to plead and stand trial and litigation capacity; it is a rare illustration of not only how a judge at first instance assesses expert evidence in such a case but also of how the court of appeal analyses the judicial reasoning when such a case is appealed.
As with a number of recent cases, such as family and immigration and asylum cases in which experts’ instructions include judgments from earlier hearings in the proceedings, this case illustrates how important it is to form opinions having regard to all of the documents with which you are provided and thereby avoiding having opinions undermined by inconsistencies with other evidence in the case.
Learning points:
General
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If your instructions do not ask you to consider the fitness to plead test and the Pritchard criteria (or some other matter), you need to explain why you have chosen to spend time and money considering a matter which is not an issue in the case.
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If you have a diametric change of opinion, you need to explain why.
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Conclusions that are fairly baldly stated without much reasoning or inadequately explained undermines their cogency.
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Do not simply adopt as your opinion paragraphs taken from your instructions without forming an independent opinion about them; this will cast doubt on your conclusions.
Fitness to plead and stand trial / litigation capacity
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The criminal test of fitness to plead, and the Pritchard criteria, are not directly applicable to contempt proceedings, where the test for capacity to conduct proceedings is that in the Mental Capacity Act 2005. But the Pritchard criteria may nevertheless assist the Court in assessing whether a defendant to contempt proceedings lacks capacity under the MCA as illustrations of the sort of decisions that such a defendant is likely to have to take in order to be able to defend the proceedings.
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An alleged contemnor has to understand what they are required to do or not to do, and that if they did not do what they are required to do they might well be punished.
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If you are considering the possibility that cognitive impairment might prevent the litigant from giving instructions have regard to what is demonstrated by any affidavits or witness statements with which you are provided.
The case
Whether the judge, Leech J, erred in finding that Ms Soophia Khan had capacity to defend proceedings for contempt of court.
Background
Ms Khan is a former solicitor who practised through Sophie Khan & Co Ltd ("SK & Co") (2nd defendant), of which she was the sole principal and director. An adjudication panel of the Solicitors Regulation Authority (SRA) decided to intervene in her practice. The SRA wrote requiring her to provide all documents in her possession to their approved intervention agent. Ms Khan did not comply with that requirement. A court order was made in similar terms. She did not comply. The SRA issued a second set of proceedings, this time adding as 3rd Defendant another company, Just for Public Ltd ("JFP"), Ms Khan having indicated that she had established JFP and transferred client matters to it. The court made another order addressed to Ms Khan and both of the companies. Again there was no compliance with the order. On 1 October 2021 the SRA applied to commit Ms Khan for contempt of court.
On 16 December 2021, Ms Khan's general practitioner wrote a letter confirming that Ms Khan was suffering from stress and anxiety due to the ongoing litigation with the SRA, which was having a profound effect on her mental and psychological well-being, and saying that she was unlikely to be in a mental state to fully evaluate and comprehend the issues before the Court.
On 17 December 2021 Leech J held that Dr Choudry's letter did not justify an adjournment. He concluded that Ms Khan was liable for contempt for breach of each of the Orders. When he came to consider sanction, he repeated that he gave full weight to Dr Choudry's assessment of her mental condition; this could not, he said, excuse her conduct but went some way to explaining why she adopted such a wrong-headed attitude to the intervention and the subsequent court orders; he also said that he made allowance for the fact that a period of imprisonment would be extremely hard for her given her psychological condition but committed her to prison for a term of 6 months for each contempt (to run concurrently), of which 3 months was punishment for past breaches and 3 months was to be discharged on Ms Khan complying with the Orders. Ms Khan did not comply with the Orders and so the full sentence of 6 months took effect. After statutory remission she was released after 3 months.
On 6 April 2022 the SRA applied for a further order against Ms Khan and the companies. If the Defendants were unable to comply, Ms Khan was ordered to sign and serve a witness statement explaining the steps she had taken to comply, why she had been unable to do so and when she would be able to do so. On 4 October 2022 the SRA issued a second application for committal.
Psychiatric evidence
The committal application was heard by Leech J on 1 and 2 February 2023. There was evidence before him in the form of an expert's report dated 6 January 2023 from Dr Arvind Gupta, a consultant psychiatrist ("Gupta 1") whose instructions included two affidavits sworn by Ms Khan. Dr Gupta's conclusion was that Ms Khan was presenting with signs and symptoms that were suggestive of adjustment disorder: mixed anxiety and depressive reaction. There was also a possibility that she might be suffering from autism spectrum disorder. In answer to a specific question as to the extent to which Ms Khan "understands and can process the current proceedings and the orders she is accused of breaching", Dr Gupta said:
"Ms Khan is cognitively alert to understand the court proceedings and can put her views, opinions and wishes in her defence. However, she does not believe that the accusations are morally right. She expressed willingness to accept the outcome, particularly after spending 3 months in prison. She came across as a person, who has over-valued and odd ideas about morality and values."
He added that in his opinion a further assessment was necessary.
Leech J accepted Dr Gupta's evidence. It was relied on before him to suggest that Ms Khan did not have the necessary mental element to prove contempt. He accepted that the Court had to be satisfied that an alleged contemnor understood what they were required to do or not to do, and that if they did not do what they were required to do they might well be punished. But he was not satisfied that Dr Gupta's report provided any evidence to support the conclusion that Ms Khan did not understand either of these things; if anything it supported his conclusions that Ms Khan understood the terms and effect of the order and appreciated that she had not delivered up any listed items or served a witness statement explaining her actions until after issue of the committal application.
Leech J handed down the Liability Judgment on 14 February 2023 finding Ms Khan and SK & Co liable for contempt in failing to produce or deliver up the Ledger, the Bank Statements and certain documents and failing to serve a signed witness statement. He gave directions for the sanctions hearing which he listed for 8 March 2023. These permitted Ms Khan to file further expert evidence. On 6 March 2023 she served a second report by Dr Gupta dated that day ("Gupta 2") who by this time had been provided with two further affidavits sworn by Ms Khan and her witness statement. Dr Gupta repeated his diagnosis that she was presenting with adjustment disorder (mixed anxiety and depressive reaction), and added a diagnosis of Asperger syndrome. He was again asked the extent to which Ms Khan "understands and can process the current proceedings and the orders she is accused of breaching". The answer he gave this time was as follows:
"Ms Khan came across as a person who has a superficial understanding of the matter and seriousness of the proceedings. Ms Khan strongly believes that she acted upon good faith and followed on the path of standing up for her clients."
He followed this with an assessment whether Ms Khan was fit to plead and stand trial based on the criteria used in criminal cases, as follows:
"100. The criteria are on the balance of priorities [sic] to be capable of:
To understand the charges
101. Ms Khan does not have a clear and thorough understanding of the charges levelled against her. Ms Khan does not fully understand the nature and the severity of the charges.
Deciding whether to plead guilty or not guilty
102. Ms Khan does understand what pleading guilty and not guilty means. Ms Khan does understand implications of being found guilty of the offence and that she might go to prison.
To give evidence in Ms Khan's own defence:
103. Ms Khan does understand the need for evidence but could not provide with any relevant opinion or views in her defence.
To instruct her solicitor and counsel:
104. In my opinion, Ms Khan cannot instruct her solicitors.
To be able to challenge a juror:
105. Since Ms Khan does not have a reasonable understanding of the charges and her actions, she cannot challenge the jurors meaningfully and effectively.
To follow the course of proceedings
106. Ms Khan can follow the court proceedings as her attention and concentration is good. However, she may not accurately comprehend the discussion.
107. In my opinion, Ms Khan is not fit to plead and stand trial."
He concluded that Ms Khan needed further assessment by the specialist autism team who could assess and offer treatment and support in terms of medication and other cognitive psychological and social needs.
The further hearing took place on 8 March 2023. Shortly before the hearing Ms Khan’s counsel filed submissions inviting the Court not to deal with sanction because medical evidence served on her behalf cast doubt on what was called her "status", that is her fitness or capacity to defend herself. Relying on the medical evidence, counsel for Ms Khan applied for the question of liability to be reopened, or for the sanction hearing to be adjourned for the appointment of a litigation friend, or for a hearing at which experts could be cross-examined on the question whether Ms Khan was a protected party. This application was rejected by Leech J on the basis that he did not consider that there was a real prospect of persuading the Court that she was a protected party. He set out Dr Gupta's consideration of whether Ms Khan was fit to plead. He then conducted a detailed analysis of various matters under eight heads, and then considered what weight he could give in the light of them to Dr Gupta's views on the question of fitness to plead:
"The real issue for me to decide is whether I attribute sufficient weight to those views to direct further evidence or cross-examination on the question whether Ms Khan lacks mental capacity. I have reached the conclusion that the evidence which Dr Gupta has given in Gupta 2 does not bear sufficient weight to take that course for the following reasons:
(1) Section 1(2) of the MCA provides that a person must be assumed to have capacity unless it is established that she lacks capacity. This is expressed as a principle not a legal or evidential presumption. As a matter of principle, therefore, I must assume that Ms Khan has capacity until or unless Ms Khan or those appearing on her behalf persuade me otherwise.
(2) The question whether Ms Khan lacks capacity must be decided on the balance of probabilities. I am not satisfied that it is more probable than not on the basis of Dr Gupta's evidence that Ms Khan is either unfit to plead or lacks capacity. Far from it, the overwhelming evidence before the Court is that Ms Khan has capacity to conduct legal proceedings on her own account or to instruct solicitors and counsel to do so. Mr Bogle has not, therefore, discharged the burden of proving on a balance of probabilities that Ms Khan lacks capacity.
(3) But in any event, I am not satisfied that Mr Bogle has any real prospect of persuading me to accept the conclusions in Gupta 2 even after further expert evidence and cross-examination and, in particular, to revise the conclusion which I reached in the Liability Judgment. The history of the Committal Application and the associated proceedings and Ms Khan's personal participation in them throughout satisfies me that I should attribute very little weight to those conclusions. I am fully prepared to accept that Ms Khan had serious medical and emotional problems after the Liability Judgment and I would not wish to downplay them. But they did not prevent her making Khan 1 to 4 (affidavits), Khan WS1 (witness statement) or continuing to participate in costs proceedings.
(4) In reaching this conclusion, I also take into account her conduct at the Committal Application. I give one example. Ms Khan attended both days of the hearing. When Mr Ahlquist had fully opened the application, I gave Mr Bogle an opportunity to take instructions from Ms Khan on whether to give evidence and submit to cross-examination. After about 20 minutes, I returned to Court and Mr Bogle informed me that Ms Khan had elected not to give evidence but to rely on Khan 1 to 4 (affidavits). I have no doubt that Ms Khan made a fully informed decision not to give evidence and was able to discuss and communicate that decision to her solicitors and counsel. In my judgment, she has no real prospect of persuading the Court that she lacked capacity when she made that decision."
Leech J then proceeded to impose a sentence on Ms Khan. He committed Ms Khan to prison for 12 months, subject to a stay of execution to enable this present appeal to be brought.
Subsequent to the decision being under appeal, further expert reports were prepared for Ms Khan by Dr Pawan Rajpal, a consultant psychiatrist. His first report ("Rajpal 1") dated 14 April 2023 was prepared on the instructions of JFP in connection with Ms Khan's appeal against a decision of the Solicitors Disciplinary Tribunal to strike her off the roll of solicitors. He agreed with Dr Gupta that Ms Khan would fulfil the criteria for ASD. His opinion was that such a diagnosis would not impair her ability to form mens rea for her actions. Her ASD deficits might have impacted on her ability to decide the appropriate action in August to October 2021, but it was not possible to quantify this.
On 8 June 2023 Dr Rajpal issued an addendum to his report ("Rajpal 1A"). In this he was asked to comment on why it was not possible to quantify the impact of her ASD diagnosis on her decision-making process in relation to court orders made on 7 and 21 September 2021. He explained that the diagnosis of ASD is based on qualitative deficits in social interaction, social communication and social imagination, along with preference of sameness (rigidity of thoughts with reduced ability to manage change). There were no scales that could quantify these deficits; and it was not possible to say with assurance whether her rigidity of thought affected her decision making as she was not assessed at the time and the deficit as seen in people with ASD can vary, over time, in the same person, depending on the situation they find themselves in.
On 30 September 2023, Dr Rajpal issued a supplementary report ("Rajpal 2"). He was asked to comment on the effect of "autistic burnout" on Ms Khan's fitness to plead and stand trial on 17 December 2021. He explained that autistic burnout is a rather new concept, described as intense physical, mental and emotional exhaustion. It was important to appreciate that the concept was rather new and there was still ongoing research required to confirm its validity and reliability. On the specific question he was asked he said:
"It is documented that she was reporting stress in November and Dec 2011.
It is very much possible that Ms Khan had some signs, as being described, as a part of 'Autistic Burnout'.
However, as mentioned, it is a rather new concept, still being described and researched and it is not possible to comment on the severity of such, on her ability to being fit to plead, engage and instruct her team for the trial on 17 Dec 202[1].
Autism itself, is not enough for defendants to become unfit to plead, engage or instruct."
The appeals
The SRA filed a Respondent's notice seeking to uphold Leech J's order on additional grounds. It had also applied for permission to rely on fresh evidence which the SRA sought to rely on to show that Ms Khan had continued to take an active role in proceedings. The companies filed their own Appellant's notice against the Order of Leech J. On behalf of Ms Khan it was submitted that the judge erred in his approach to the question whether Ms Khan was fit to plead.
Judgment
Leech J was right that the test of fitness to plead in criminal cases, and the Pritchard criteria, do not as such apply to committal proceedings. The relevant statutory test for whether a party to civil litigation, including a defendant to contempt proceedings, has capacity to conduct proceedings is that found in the provisions of the MCA. The reason he did not accede to counsel’s application was not because he preferred one test to another but because he did not accept the conclusion in Gupta 2 that Ms Khan was unfit to plead.
The court then examined each of the 8 points relied on by Leech J in coming to his conclusions and in the light of the submissions of Ms Khan’s counsel, Mr Bogle.
Point (1) was that Dr Gupta's instructions, which were before the Court, did not ask him to consider the fitness to plead test and the Pritchard criteria, and he did not explain why he did so. Mr Bogle accepted that this was so; but said that Dr Gupta was obviously familiar with the test, and his instructions did ask him to consider the extent to which she understood and could process the proceedings. The court did not think this point by itself took one very far, but agreed with Leech J that one might have expected an explanation of why Dr Gupta thought it appropriate to consider the fitness to plead test at all.
Point (2) was that Dr Gupta had not been provided with Ms Khan's third or fourth affidavits. Since he said that the diagnosis by itself did not necessarily result in cognitive impairment, and did not suggest that there had been any recent adverse change in her mental state, it would have been very relevant to consider whether her affidavits (she swore four in all between 30 November 2022 and 1 February 2023) really demonstrated the kind of cognitive impairment which would prevent her for example from giving instructions. But Dr Gupta did not conduct any such analysis and said nothing about whether the affidavits he did have (her first two) provided relevant evidence as to her fitness to plead.
The court took this with point (3) which was that Dr Gupta did not explain why he had changed his mind from Gupta 1 as to Ms Khan's fitness to plead. Mr Bogle said again that he had had the benefit of a lengthy face-to-face interview. As counsel for the SRA accepted, that might have been an explanation, but if so Dr Gupta didn't say so. He undoubtedly did take a radically different view in Gupta 2 from that he had taken on the same question in Gupta 1, but without any explanation at all for his change of view, or even explicit recognition that his conclusion in Gupta 2 that Ms Khan "is not fit to plead and stand trial" was diametrically opposed to the view he had expressed in Gupta 1 that she "is cognitively alert to understand the court proceedings and can put her views, opinions and wishes in her defence".
The court thought Leech J was entitled to take both these points into account. No doubt they would not have been enough in themselves to cause him to reject the conclusions on fitness to plead in Gupta 2, but it did mean that those conclusions were fairly baldly stated without much reasoning, which undermined their cogency.
Point (4) was that Dr Gupta had set out a Case Summary in Gupta 2 which included reference in paragraph 8 to Ms Khan having suffered mental and emotional health issues and having begun to make erratic and unwise decisions, and in paragraph 9 to her having appeared to have adopted the delusive position that she needed to protect the confidentiality of her clients from the SRA, which was described as an irrational position that no solicitor acting rationally could ever adopt. Paragraphs in identical terms had been included in Gupta 1. Mr Ahlquist pointed out that for the purposes of the 2005 Act a person is not to be treated as unable to make a decision merely because he makes an unwise decision (s. 1(4)), and Leech J accepted that this cast doubt on whether Dr Gupta had applied the correct test. It was pointed out to Leech J that these paragraphs were taken from Dr Gupta's instructions, to which his reaction was that the fact that Dr Gupta accepted them without forming an independent opinion about Ms Khan's decision making might cast even greater doubt on his conclusions.
Mr Bogle did not put forward any substantive challenge to this assessment. Indeed it seemed to the court that there was another point which could have been made. Since paragraphs 8 and 9 were in the same terms in Gupta 1 and Gupta 2, it was apparent that nothing in this respect had changed. But in Gupta 1 Dr Gupta had said that Ms Khan was cognitively alert to understand the proceedings, and had said in terms that "There was no expression or evidence of delusional thinking." So the matters recited in paragraphs 8 and 9 of Gupta 2 could not explain the conclusions he expressed on fitness to plead, or the apparent change in his views since Gupta 1.
Point (5) indeed was a summary of the inconsistencies between Gupta 1 and Gupta 2 which were unexplained. Mr Bogle again submitted that these were all explicable on the basis of a more thorough examination. But the fact was that the inconsistencies were striking, and were not explained. One example given by Leech J was sufficient to illustrate the point. In Gupta 1, Dr Gupta said that Ms Khan "can put her views, opinions and wishes in her defence"; in Gupta 2 he said that she understood the need for evidence but "could not provide with any relevant opinion or views in her defence". This was not a slight or nuanced change in position based on a more detailed investigation but a stark and complete reversal.
Point (6) was the contrast between Dr Gupta's views in Gupta 2 and the conclusion Leech J had himself come to in the Liability Judgment, namely that Khan 1 to 4 betrayed a thorough understanding of the terms of the Order and of what compliance with it required. Leech J said it was very difficult to see how Ms Khan could have prepared her four affidavits without a clear and through understanding of the allegations of contempt and their severity, or if she could not instruct her solicitors, or provide them with her views and opinions about the way to address those allegations, or provide them with any relevant evidence in her defence.
Mr Bogle said that his solicitors were faced with the difficulty of trying to make as much as possible from what they had, but that if Ms Khan were in fact unfit to plead her instructions and affidavits were useless. Leech J was therefore assuming that which had to be proved.
The court did not think this did justice to the point Leech J was making. Mr Bogle naturally accepted that the facts deposed to by Ms Khan came from her, it not being suggested that the solicitors had devised facts themselves. So where an explanation was given, it was an indication that Ms Khan was able to give instructions on relevant facts to her solicitors. The court considered Leech J was plainly entitled to take account of what she said in her affidavits as casting very significant light on her understanding of the proceedings. Indeed the court thought this (and the related point in point (7)) was the key consideration which led him to conclude not only that Dr Gupta's conclusions were inadequately explained and insufficient to persuade him, but also that there was no real prospect of his being so persuaded even with further evidence or cross-examination.
Point (7) was to much the same effect. It was that there was evidence subsequent to Ms Khan's meeting with Dr Gupta (which took place on 25 February 2023) that she continued to take an active part in proceedings in a way that showed that she understood and was able to participate in them. Thus she had made a detailed witness statement explaining why she had been unable to meet the Court's deadlines; she was working on an affidavit which she proposed to give to show that she had purged her contempt; and she had made a without prejudice offer (signed by herself) and served points of dispute and supplemental points of dispute in costs proceedings (which could be shown by the metadata to have been amended by her personally). She had also been involved in litigation with the SRA for a number of years, often representing herself; and Leech J was taken to transcripts of two hearings in which she addressed the Court. His conclusion from this material was that there was no suggestion that she had any difficulty understanding the proceedings or defending herself; and that:
"If she was suffering from the long-standing issues which Dr Gupta has identified at the time, they did not impair her ability to comprehend and participate fully in legal proceedings even to the extent to appearing before the tribunal herself."
Mr Bogle submitted that these were matters that could and should have been explored in cross-examination. But the court considered that Leech J was plainly entitled to take them into account. The court was taken by counsel for the SRA through some particular points that had been deployed by Ms Khan in her affidavits as answers to the charges. The court accepted his submission that they demonstrated a sophisticated awareness of the detail of the proceedings that was entirely at odds with the conclusions on fitness to plead expressed in Gupta 2.
Point (8) was that Dr Gupta concluded that Ms Khan "cannot instruct her solicitors", but that this was another bald conclusion that was quite unexplained. Mr Bogle pointed to a part of Gupta 2 which referred to there being a high possibility that her difficulties could have had an impact on her information processing and decision making related to the issues mentioned in the charges levelled against her. But that did not seem to the court a sufficient answer to Leech J's point that there was no real explanation in Gupta 2 as to why he concluded that she could not instruct her solicitors when the other material indicated that she not only could but had done.
Having been through each of the eight points, the court returned to the overall question which was whether Leech J was entitled to reach the evaluative assessment, on the basis of all the material before him, that there was no real prospect of his being persuaded to accept the conclusions on fitness to plead in Gupta 2 even with further evidence and cross-examination. The court thought he was entitled to reach that view, and if he was, then he was also entitled to proceed without any further adjournment.
The court therefore dismissed this ground of the appeal.