The Psychiatrist in Civil Court
Dr Kiriakos Xenitidis
Consultant Psychiatrist
Mental Health Learning Disabilities Team
The Maudsley Hospital
South London & Maudsley NHS Trust
Visiting Senior Lecturer
Institute of Psychiatry, Psychology & Neuroscience
King’s College London
University of London
HM Courts and Tribunals
Service
•Responsible for the administration of criminal,
civil and family courts and tribunals in England
and Wales (and non-devolved tribunals in
Scotland and Northern Ireland).
•Criminal Courts
•Civil Courts
•Family Courts
HM Court and Tribunal Service
•Admiralty Court
•Bankruptcy Court
•Commercial Court
•Companies Court
•Court of Appeal Civil / Criminal Divisions
•Court of Protection
•Family Division of the High Court
•Intellectual Property Enterprise Court
•Mercantile Court
•Patents Court
•Planning Court
•Technology and Construction Court
Civil Law
•There is no single codified source of civil law.
• Civil law is made up of legislation by Parliament
and decisions by the courts. Courts interpret
legislation and are usually required to follow
decisions on the same issue made by a court of
equivalent or higher status.
•Legislation and decisions of the courts are
subject to legislation adopted by the European
Council and decisions of the European Court of
Justice
Judgement
•Trial is determined by the Judge
alone, except
–civil fraud and
–defamation cases
where is a right to trial by jury
Civil Courts
•County Courts
•High Court (>£50.000 claims)
–Chancery Division
–Queens Bench Division
–Family Division
Chancery Division
•Wills
•Trusts
•Insolvency
•Tax.
Queen’s Bench Division
•Contractual disputes
•Personal injury cases
•Industrial accidents
•Defamation cases
•Negligence claims
Family Court
Family Division High Court
• Child ‘ward of the court’
•Forced marriage
•Female genital mutilation
•Child abduction
•Divorce financial relief
etc
What after the High Court?
•The Court of Appeal deals with
appeals from a decision of a High
Court judge.
•The Supreme Court, where the
appeal is heard usually by five
Justices.
•The European Court of Justice for
guidance on points of EU law.
Civil Procedure Rules (CPR)
•Introduced in 1998
•Ensuring parties are on an equal
footing;
•Dealing with the case in ways which
are proportionate (money,
importance, complexity)
•Ensuring that the case is dealt with
expeditiously and fairly.
The parties
•Claimant
–Pre-action matters
–Serves Court proceedings
•Claim Form
•Particulars of Claim
•Defendant
–Must in 28 days serve
•Defence
•Counterclaim
Litigation Friend
•an adult who lacks the mental
capacity to manage their court case
•a child
The court case can be:
•a civil case, except a tribunal
•a family case
•a Court of Protection case
Official Solicitor
•nobody else is suitable and willing to
be litigation friend
•there’s money available to pay the
Official Solicitor’s costs, eg legal aid
•A medical professional confirms lack
capacity to manage the case
•The court will appoint the Official
Solicitor - if he agrees - at the
relevant time.
Case illustrations
•Court of Protection (capacity)
•Family Court/FD High Court
(parenting)
•Personal Injury (compensation for
negligence)
Mr P
• Mr P s A is a 24 year old single man
with Autism and borderline
intellectual functioning. Childhood
history of sexual exploitation by
older brother. Recent history of
sexual abuse by ‘boyfriend’.
Safeguarding alert by Local
Authority.
Mr P
•Moved out of family home age 19.
Left school with no qualifications.
Never worked but volunteered at
unskilled charity work.
•Application to CoP: capacity
–To consent to sexual relations
–To make decisions re residence, care
contact
Court of Protection
Make decisions on financial or welfare
matters for people who can’t make
decisions at the time they need to be
made (they ‘lack mental capacity’)
Court of Protection
•deciding whether someone has the mental capacity to
make a particular decision for themselves
•appointing deputies to make ongoing decisions for
people who lack mental capacity
•handling urgent or emergency applications about a
lasting power of attorney or enduring power of
attorney
•statutory wills or gifts
•making decisions about when someone can be
deprived of their liberty under the Mental Capacity Act
The role of the Psychiatrist as
an expert witness
•Diagnosis (Mental Condition)
•Prognosis (likely to gain capacity?)
•Treatment (and effect on capacity)
The role of the Psychiatrist
•Capacity
–Diagnostic test
–Functional test
•Understand relevant information
•Remember it
•Use and weigh it in balance
•Communicate a decision
Capacity to consent to sexual
relationships
•Able to understand remember use
and weigh and communicate
–Mechanics of sex
–Sexually transmitted diseases
–Pregnancy as a result of sex
The role of the Psychiatrist
•Best Interests
•Wishes and feelings
–Weight to be attached
–Best ways to obtain them
Miss A
•19 year old woman with mild
learning disabilities. History of
disrupted childhood. Taken into care,
mother had LD and mental health
problems. Transferred care from
Children services to Adult services,
living in a ‘transferring care’ hostel.
Miss A
•Met boyfriend at hostel (also grew
up in care, low IQ but not LD).
Pregnancy. Social Services
concerned about her parenting skills.
•Application to Family Division.
Assessement of capacity
The Children and Family Court
Advisory and Support Service
(Cafcass)
•Looks after the interests of children
involved in family proceedings.
•It is independent of the courts and social
services
•Works with children and their families, and
then advise the courts on what is
considered to be in the best interests of
individual children.
Cafcass
•Cafcass was set up on 1st April 2001; brought
together the family court services previously
provided by the Family Court Welfare Service, the
Guardian ad Litem Service and the Children’s
Division of the Official Solicitor’s Office.
• A non-departmental public body accountable to
the Secretary of State at the Ministry of Justice
(MoJ).
• The largest employer of social workers in
England.
Cafcass
Three main areas of work
Divorce and separation
Care proceedings
Adoption
Official Solicitor’s Office
•The Official Solicitor acts for
people who, because they lack
mental capacity and cannot properly
manage their own affairs, are unable
to represent themselves and no
other suitable person or agency is
able or willing to act.
Role of expert witness
•Diagnosis (‘mental disorder’)
•Prognosis (prospects of
improvement)
•Risk assessment (interest of child
paramount)
•Treatment indicated and likely effect
on parenting capacity
Mr R
•35 year old man with severe
learning disabilities. Living at home
with parents, who are the main
carers.
•Care package includes
–Day care daily
–Respite care (one weekend/month)
–Carers visiting at home
Mr R
•Physical and emotional abuse 10
years ago within day care setting
•Expert witness instructions
–Condition and Prognosis
–Litigation capacity
–Causation
–Quantification
Tasks of Expert Witness
•Diagnosis
•Severity of condition
•Percentage of attribution to abuse
•Quantification of injury
–Life expectancy
–Functional level due to pre existing
disability
Statement of Compliance
I understand my primary duty to the Court
under Rule 35.5 of the Civil Procedure
Rules 1998 as amended. In particular, I
understand that I am under a duty to help
the Court on matters within my expertise
and that this duty overrides any obligation
to the party from whom I have received
instructions or by whom I will be paid. I
confirm that I have complied with this
duty.