By a Serious Brain Injury Case Manager, 13 October 2020
This tweet gave me reason to pause and reflect because it came on the back of a request by a lawyer to commission me, as a professional working in acquired brain injury, as an expert witness for the Court of Protection.
The vast majority of my work as an expert witness is for the High Court as a Care Expert. It is my role to identify what services and support a person with a brain injury will need across their lifetime and provide costs for this. I have however also been commissioned to give expert opinions for the Court of Protection. Usually this relates to a question of what is in the best interests of a person with a brain injury who lacks capacity to take a specific decision, often related to where someone lives and how they are supported. The person’s lack of capacity has been decided before I am commissioned and is not contested. What is up for discussion is how the individual’s needs are best met, i.e. what is in their best interests?
I am not part of an organisation that promotes my availability for expert work, it has simply developed over the last 20 years and is sustained by word of mouth. Whilst I am often commissioned by the same people (or their colleagues), I am also commissioned by legal firms and lawyers I have had no contact with too. So, not a closed loop but this is not a question of what economists would call “perfect competition”.
Responses to Celia Kitzinger’s tweet revealed that this is a familiar problem in many areas of the Court of Protection’s work. The barrister Katie Gollop (@katiegollop) responded that all 5 anorexia cases in the COP prior to a recent hearing in which she represented P had used the same person as an expert witness. Maybe, she reflected, having a different expert would make no difference to the evidence or to the outcome of the case “but with no mix, we don’t know”.
Several experienced COP lawyers raised the issue of payment: “the limitations of legal aid rates don’t help, I suspect” (@WGAbroad); “It can be tricky to find someone who will work for legal aid rates and produces reports which don’t need clarifying and addendums on so many points that it ends up wasting a lot of time and money… always looking for new ones but actually not many about” (@MrsArcticride); “often the pool is restricted by legal aid rates, proximity to P, and the need for someone who understands the statutory framework of capacity assessment”.
I have found from my own experience in High Court cases that fellow experts from different disciplines can become familiar faces, particularly in fields where there are very few appropriately qualified and experienced people. This is a real issue when considering the needs of people affected by acquired brain injury, most especially if the outcomes are less obvious and require greater experience to identify and assess.
The most complex cases that I encounter concern people with “higher level” difficulties with executive skills, i.e. with social behaviour and social communication and with cognition, particularly if the affected person has reduced or no awareness of their difficulties and how this affects their functioning. Most complex of all are those with an intellectual awareness of their difficulties: such people can describe the difficulties they face, but only in the abstract and externally generated and sustained scenario of an assessment. When this intellectual awareness does not affect functioning or behaviour in the real world, this makes assessment a real challenge. There is an increasing body of research evidence regarding how poorly mainstream and generalist services pick up on the needs of the unfortunately named “walking wounded”, i.e. those who have generally made a good physical recovery from their brain injury but who have been left with life changing issues that can affect decision making, planning, problem solving and initiating activity (e.g. Flynn, 2016; George and Gilbert 2018, Moore et al, 2019).
It is hardly a surprise therefore that some individuals affected by brain injury come to the attention of the Family and Criminal Courts and the Court of Protection. Their Lordships review of the Mental Capacity Act noted the specific issues with assessment of Mental Capacity for people with an ABI and the evidence provided to the review was very critical, not of the perceived paternalism experienced by some other groups, but of the reverse (House of Lords, 2014). Evidence from across England and Wales, specifically naming acquired brain injury, reported a failure to conceptualise and adequately respond to invisible, complex and interrelated difficulties and a failure by non-specialists to know how to assess such matters (Norman, 2016; Holloway, 2014; Holloway et al, 2019)
In recent years I have been approached to undertake assessments and give expert opinion in the Coroner’s Court, the Family Court and the Court of Protection. Sometimes this work is jointly commissioned by multiple parties and sometimes it relies upon Legal Aid funding for that commission. From a financial perspective, it would make sense not to accept such referrals. The State clearly does not pay the same rate as the commercial world of personal injury litigation. I am part of a small business that needs funding to survive, to support the pro-bono work we do and to fund time for research and writing.
My personal decision to take on such referrals (occasionally) is informed in part by a sense of duty (if I know something and can help, then I ought to) and, perhaps in a less lofty and self-regarding/virtuous way, because such matters can be really interesting and can tax one’s mind and thinking. I have therefore agreed to work at 78% of the usual medico-legal hourly fee, at 57% and, once, at 42%. On each occasion I have been informed that this is the maximum fee structure permitted for the task. The hours allotted and agreed are never sufficient, so this creates another pro-bono element too. The fact that the fee seems to vary is not something I claim to understand.
Recently I was approached to undertake an assessment and give expert opinion in a matter which sits firmly in my field of experience and expertise, it was a similar request to others that I have carried out. However, on this occasion, I was informed that the maximum hourly rate was 17.35% of the medico-legal rate (for clarity, not 17.35% less than the medico-legal rate, just 17.35% of it). A quick search of the internet informs me that the hourly rate insisted upon was the same as what was being offered for a “Customer Services Advisor”, where educational expectations of candidates was “GCSE’s preferred”. I turned down this referral.
So, whilst not doubting at all the skills, integrity and ability of the experts whose names had become quickly familiar to an observer (and to other experts) at the Court, I suspect that funding may be one of the reasons why that familiarity has developed. When it is not “the market” that decides the appropriate rate, an element of self-selection/self-de-selection of who is commissioned becomes normal. Putting it more directly perhaps, who can afford to work for significantly reduced fees? Is “P” able to benefit from the very best of expertise when hourly rate is a driving force for choice of expert? If you have a choice, do you work for less than 20% of your usual hourly rate?
As it should be, giving expert opinion is an onerous task. Never more so than when the outcome could affect where someone lives, who they live with or even if they live at all. It would be a very foolish person to take these responsibilities lightly. Such cases invade my sleep and cause me self-doubt. The reputation of an expert can be lost in an instant. We are all only as good as our last case, as the careless, hubristic, unlucky or over-worked can find to their cost. Within my field there is a dearth of suitably qualified and experienced professionals in practice, let alone able to give expert opinion. I fear that financial considerations with publicly funded cases is exacerbating this situation and doing a potential disservice to both the Court and, more importantly, to “P”, the person who at the centre of the case. Bearing in mind that brain injury is somewhat of a Cinderella with statutory provision, it would be helpful if funding agreements recognised it as a speciality that is nuanced and complex and where achieving expertise is not straightforward.
The author is an experienced Serious Brain Injury Case Manager who has often provided expert evidence in court.
Editors’ note: We also recommend this report by Malvika Jaganmohan about the findings of the President’s Expert Witness Group Symposium (dealing with expert witnesses in the family courts).