Negotiating the domain of mental capacity

‘Stage 1’ – The diagnostic threshold

In requiring an identifiable impairment or disturbance of mental function as a separate requirement from characteristics manifesting an inability to decide, the MCA introduced what is known as a ‘diagnostic threshold’. The MCA Code of Practice identifies this diagnostic threshold as stage 1 in the process of assessing P’s capacity. ³⁰ It will usually (but not always) be the case that the identified impairment or disturbance is constituted by the diagnosis of a condition (whether mental disorder, learning disability or brain damage). ³¹ The inclusion of this diagnostic component and its positioning as stage 1 of the process might be predicted as encouraging a deferential approach to medical evidence. Certainly, medical evidence is generally conclusive on the impairment issue. Once P is regarded as suffering from an impairment (based on the medical evidence), the inclination to pathologize aspects of P’s behaviour, and assume that P lacks capacity because of that impairment, is strong. The judgment in Re AA, in which Mostyn J confessed to be ‘struggling to envisage a circumstance where a patient detained under section 3 [of the Mental Health Act 1983] as an inpatient with a diagnosed mental illness has got capacity’, (sic) would seem to lend some substance to this prediction. ³² These dangers are also identified by Sir Nicholas Wall in RT v. LT & Anor where he references the tendency to assume that incapacity follows pathology as ‘the trap’. ³³ If the non-discrimination provisions of the CRPD are to be achieved, it is vital that the courts demonstrate resilience in resisting the inclination to pathologize the decisions of anyone who meets stage 1 of the test. Otherwise, the non-discriminatory potential of the presumption of capacity is lost.

In the domain of unfitness to plead in criminal cases, the Law Commission recently concluded that a statutory test modelled on the MCA should be introduced, but refused to endorse the inclusion of a diagnostic threshold. ³⁴ This seems to have been, at least in part, due to the objections of a number of consultees commenting on its potentially discriminating effects and consequent incompatibility with the principle of universal legal capacity in the CRPD. ³⁵

‘Stage 2’ – The functional criteria

Although ostensibly descriptive, these criteria, particularly the requirement that P must be able to ‘use’ and ‘weigh’ the information to reach a decision, necessarily involve a degree of normative judgement in their application. ³⁶ Thus, although the judges regard the tests as ‘clear’, Foster identifies a host of questions arising in the consideration of section 3 alone. ³⁷ These questions leave ample room for competing interpretations and space for negotiation as to the exact meaning and proper application of the concept of capacity.

The functional criteria are identified in the MCA Code of Practice as stage 2 of assessing capacity, and it is in this negotiable space that the CoP has been eager to claim supreme authority. Speaking of the functional criteria, Munby J (as he then was) in A Local Authority v. A observed: ‘only the court has the full picture. Experts are neither able nor expected to form an overview’. ³⁸ These sentiments were reiterated by Justice Baker in ST v. CC with the words ‘…it is the court alone that is in the position to weigh up all the evidence as to the functional test and thus it is the court that must make the ultimate decision’ ³⁹ and were later echoed in London Borough of Islington v. QR in the assertion that ‘[t]he decision on capacity is one for the judge to make’. ⁴⁰ These dicta clearly recognize that mental capacity should not be treated as falling exclusively within the medical domain and that the court is the ultimate arbiter on this issue. Nevertheless, the evidence of psychiatrists is generally sought not only on whether P is affected by impairment, but also on whether the functional criteria have been fulfilled. ⁴¹

Causation: The ‘inferential gap’

Describing the tests by reference to ‘stages’ 1 and 2 has served to underplay a key component of capacity assessment, namely the necessity of demonstrating that the impairment is causing the ‘inability to decide’. ⁴² This causal component of the test for incapacity represents further negotiable territory, which might be thought to sit within psychiatry’s area of expertise. Long before the MCA was passed, Silberfeld and Checkland identified a shortage of relevant expertise on the causal dimensions of incapacity. ⁴³ Their paper referred to this problem as ‘the inferential gap’; psychiatry’s expertise generally lay in the area of which therapies worked for which mental health problems, but was ill-equipped to answer whether an identified mental illness was truly responsible for a particular style of decision-making. ⁴⁴ In the absence of any real expertise on this aspect of capacity, assessors must draw an inference as to whether P’s apparently flawed decision-making is caused by their impairment.

The case of Re M provides a useful example of how important the causal nexus is, while also highlighting the dangers of deferring to medical evidence too readily. ⁴⁵ M, a 67-year-old woman wishing to return home to her bungalow from a care home, was judged to lack capacity on the issue of her residence. The judgment relied heavily on the evidence of an independent psychiatrist that she was suffering from ‘mild depression’ (as evidenced by her being prescribed antidepressants) and that she was unable to make a decision because her inability to appreciate her personal limitations meant that she had unreasonable expectations of being able to manage her physical illness (diabetes) at home. On the face of it, this judgment appears flawed on a number of fronts. In relying on mild depression as the ‘impairment’ required for section 2(1), M was ensnared in a ‘catch 22’. Anyone being told, as M was, that she could not return home to be with her partner of 30 years, but would need to move to residential care, would likely become mildly depressed. Moving on from the diagnostic threshold, Justice Peter Jackson stated that M was unable to make a decision under section 3(1)(c) because:

…a central component in that decision is an appropriate appreciation of the risks arising from the lower level of supervision of her diabetes management that a home placement entails compared with 24-hour professional oversight. M has an inflexible but mistaken belief that she can manage her own diabetes and consequently cannot weigh up the serious risks involved in a reduction in the level of supervision. ⁴⁶

The prominence afforded to the diagnostic threshold suggested by the MCA Code of Practice facilitates, or even encourages, a deferential approach to medical evidence on capacity. However, uncertainties surrounding the functional criteria and the inferential gap outlined above appear to leave open substantial negotiable territory. How are doubts about P’s capacity resolved? And to what extent are they resolved in ways which suggest medicalization, or deference to medical opinion?

Quantitative and qualitative markers of judicial ‘deference’

The term deference is widely used in constitutional law to indicate ‘standards of review’ of lower court or public body decisions, and broadly refers to the ‘weight attached’ to those decisions. ⁵⁰ This ‘doctrinal deference’ is to be distinguished from ‘epistemic deference’, which refers to the practice of paying respect to other decision makers by according weight to them. ⁵¹ It is this latter application of deference which is frequently used in a pejorative sense in medical law to frame critique, with a focus on the scrutiny the court applies to particular sources of argumentation. As indicated above, Donnelly’s observation that the courts have been deferential to the opinion of medical experts when dealing with issues of mental capacity suggests that the low incidence of cases departing from medical evidence provides a preliminary indicator of such deference. ⁵² Deference might therefore, at least in part, be measured by reference to quantitative, ‘outcome-based’ indicators. ⁵³ Certainly, a quantitative approach can offer a useful starting point before embarking on a more detailed analysis of markers/indices of deference.

Collating the quantitative evidence

In 2010, Donnelly also commented on the ‘dearth of reported decisions from the Court of Protection’, this fact making it very difficult to assess the court’s approach to expert evidence on capacity post-MCA. ⁵⁴ Transparency reforms to the CoP in 2014 mean that the paucity of reported cases has, to an extent, been remedied. ⁵⁵ The publication of these judgments has been liberalized, and, in 2016, it was possible for the author to compile a database of well over 200 CoP judgments in order to assess post-MCA judicial responses to expert evidence on P’s capacity. ⁵⁶ From this data set, 66 judgments were identified where P’s decision-making capacity in health/welfare cases was explored in some detail, ⁵⁷ being of three further types:

the ‘consensus cases’ – 51 (77%) of the 66 judgments were identified as consensus cases where a consensus was reached among all the experts (or there was only one expert) and the court as to whether P had mental capacity on the particular issue(s) at stake ⁵⁸ ;

Analysis of the 66 cases suggested that the majority of experts called to give evidence on capacity were doctors: 73% of the witnesses providing expert evidence on capacity were from the medical profession (i.e. 55% were psychiatrists and ‘other doctors’ made up 18% of the sample). The remaining 27% was made up of social workers (12.5%), psychologists (9.5%) and ‘others’ (5%). ⁶³ In 24% of the judgments, the only expert evidence referred to on capacity came from psychiatrists. These statistics raise a number of interesting questions about the impact of the apparent dominance of medical evidence, and particularly psychiatric evidence, in the process of assessing P’s capacity: Is the CoP as deferential to medical expert evidence on capacity as has been suggested was the case before the MCA? What role should quantitative criteria and qualitative indices play in measuring deference in this context? Finally, if the medical view is allowed to dominate capacity assessment in the courts, what are the social and policy implications? ⁶⁴

Uncontested expert evidence on capacity: The deviation cases

The judgments in CC, SB and Z provide mixed evidence of the level of scrutiny applied to expert medical evidence. On first impressions, they conform to what we might expect strong forensic scepticism to look like – the outcome in each case is ‘capacity affirming’, in that it rejects the unanimous expert evidence to find that P does indeed have capacity to make the decisions under consideration. Further, in all three cases, it is evidence from lay witnesses, specifically, direct evidence from P herself, that is preferred to that of all the ‘experts’. In CC, Justice Baker found that P, an 82-year-old woman with vascular dementia, had capacity to decide whether she should live in her bungalow or in a nursing home. P’s testimony in the courtroom had clearly made a significant impression:

I note in particular that for a period earlier this year she elected not to go on her daily visits to the bungalow because of the inclement weather. This is, to my mind, clear evidence that she has the capacity to understand and weigh up information and make a decision. Likewise, I consider her frank observation that “if I fall over and die on the floor, then I die on the floor” demonstrates to me that she is aware of, and has weighed up, the greater risk of physical harm if she goes home. ⁶⁶

The text of all three judgments also challenges (to varying degrees) the medical evidence and explicitly asserts that the functional test for incapacity is the law’s domain. ⁶⁹ The judgment in Re SB perhaps goes furthest here, in launching a normative challenge to the expert view on where the threshold of capacity ought to be pitched; a direct assertion of territory over the proper construction of the functional criteria. While Justice Holman accepted the experts’ diagnoses of bipolar disorder as evidence that P suffered from an impairment or disturbance, on the issue of whether she had the ‘ability’ to make a decision, the experts had pitched the threshold for capacity too high. Termination of pregnancy was, according to Holman J, ‘…a profound and grave decision,…it [did] not necessarily involve complex issues’. ⁷⁰ The judgment also stressed that before a finding of incapacity could be made, the effect of the impairment must not be just to ‘impair’ decision-making, it must render P ‘unable’ to make a decision. ⁷¹ The judgment in Re Z is not explicitly critical of the expert’s assessment, but notes that while the expert had interviewed Z three times, the most recent update from the expert, two days before the hearing, comprised only a short email. The expert evidence was outweighed by the significance of the ‘other evidence’ (i.e. the testimony of Z herself) and the judge’s own interpretation of Z’s behaviour. The assertion of jurisdiction over the functional criteria is further underlined by the fact that the narrative of the judgment juxtaposes the ‘Expert assessment’ with the judge’s own ‘Assessment of Z’. ⁷²

But perhaps a more significant aspect of the ‘deviation’ judgments concerns the court’s assertion of competence over the inferential gap. In reaching a finding that P had capacity, the court grapples directly with the inferential gap, in choosing to reject pathological narrative, and in offering a normalizing, non-pathological explanation for P’s behaviour and style of decision-making based on the judge’s own, non-clinical assessment. In Re Z, Cobb J concluded that the behaviour reported by the expert was not to be construed as symptomatic of Asperger’s Syndrome and indicative of a lack of capacity, but instead was consistent with ‘naivety, immaturity, diffidence or embarrassment’. ⁷³ In Re SB, the experts focused on the effect of her persecutory beliefs preventing her from ‘understanding’ that her husband would be a caring and supportive father. Referring to this, Holman J commented that if he were to try to interrogate the truth of P’s views of her marriage as compared with those of her husband ‘as if this were a divorce hearing’, he would have been there a considerable length of time. ⁷⁴ In doing this, he normalizes P’s decision-making by invoking a comparative evaluation with divorce petitioners. ⁷⁵

However, some of the features which make these cases exceptional might also weaken the argument for saying that they provide clear examples of forensic scepticism in the courts’ approach to the expert evidence. First, P’s own evidence was clearly crucial in the courts’ decision to prefer a non-pathological explanation for P’s decision-making, but if hearing directly from P really was the determinant factor in these cases, this is quite worrying. The experiences of P in CC, SB and Re Z are not replicated in most cases – a trawl through the data set compiled by the researcher suggests that the direct participation of P in the proceedings had been ad hoc at best. Giving evidence to the House of Lords Select Committee on the MCA, one CoP judge thought that she had communicated directly with P in about 10% of cases. ⁷⁶ The cases in this data set suggested that direct participation had become more common, at least in health and welfare cases, with 16 of the 66 cases referring to direct communications between P and the judge. ⁷⁷ In the older cases, in particular, however, P was frequently represented in the court’s judgment only through the judge’s narrative of the facts (often largely a potted medical history) and through the lens of capacity assessments submitted in evidence. As one of the principles underpinning the MCA is to maximize P’s involvement in decision-making processes, ⁷⁸ it is absurd that historically P’s voice has been so frequently absent in CoP judgments.

Second, one of the deviation cases, Re SB, was not a dispute arising out of P refusing the treatment or care being offered, rather the issue was, unusually, whether P had capacity to consent to a termination. It is well known that the assessment of P’s mental capacity is more likely to be triggered by a refusal of treatment, ⁷⁹ and that capacity to consent is usually more readily found than capacity to refuse suggested treatment.

Finally, of these three cases, it is CC ⁸⁰ which is probably the most striking case of departure from the medical evidence. This judgment, however, did not directly challenge the norms being applied by the experts. Instead, the judgment expressed doubt about the credibility of one expert’s evidence (due to the extent of repetition in his reports). ⁸¹ In fact, the exceptional outcome in CC’s case is perhaps attributable to the fact that P was regarded as having litigation capacity. This meant that she had secured counsel – counsel who in this case adopted an unusually strong adversarial approach to the evidence on capacity. ⁸² It was this approach which had resulted in aspersions being cast on the credibility of one of the expert witnesses.

It might therefore be concluded that collectively these judgments offer, at best, fairly weak evidence of forensic scepticism on the issue of P’s mental capacity. Given that there were only three cases in the data set of the judge deviating from the medical consensus on P’s capacity, and that these cases feature unusual and distinct characteristics (strong adversarial representation and a decision to consent to treatment) rather than robust strategies of forensic scepticism, this would seem to support Donnelly’s hunch that even post the MCA, the courts are highly unlikely to depart from the medical evidence. It is far from clear, however, that the rarity of departure from medical evidence can be characterized as evidence of deference per se. What of those cases where the medical evidence itself is not in agreement? Do these judgments tend to exhibit qualitative indicators of deference?

The conflict cases – Stronger evidence of forensic scepticism?

It is perhaps surprising that the stronger evidence of forensic scepticism came from the cases where medical evidence was in conflict, and therefore the court’s decision ultimately sided with one medical view rather than the other. In cases of conflicting evidence on capacity, deference can be examined by looking at the means deployed by the court to resolve that conflict.

Medicalization of mental capacity: Deferring to medical opinion?

As highlighted above, a number of commentators have suggested that the law defers too readily to medical expertise on the issue of capacity. ¹⁰⁴ Before reflecting further on the law and judgments relating to mental capacity, this article will briefly examine the diverse engagement of legal scholarship with the concept of medicalization and assess its utility in the context of exploring how mental capacity has been constructed in the court room.

Reliance on medical evidence and human rights: A potential source of ‘arbitrariness’

Previously expressed concerns about deference to medical judgement in the assessment of capacity ¹²⁷ have not spelled out the implications for ECHR and CRPD compliance. Deeply embedded in ECHR jurisprudence is the notion of medical evidence as a safeguard against (state) arbitrariness in deprivations of liberty. Under Article 5(1)(e), non-emergency deprivations of liberty may be lawful on the grounds that P suffers from ‘unsoundness of mind’ but that ‘unsoundness’ must be verified by ‘objective medical expertise’. ¹²⁸ The objectivity attributed to the medical professional in ECHR case law seems to be assumed to be inherent to the profession itself but is also reinforced by the regulatory framework underpinning it. ¹²⁹ Article 5 jurisprudence does not seemingly require that the decision on unsound mind must be taken in accordance with the medical expert view, rather that a finding of incapacity cannot be made without the support of medical evidence. The results of this study of CoP cases mirror this position. It is clear from the judgments that the CoP can (and very occasionally does) make a decision that P has decision-making capacity without any supporting medical evidence, ¹³⁰ but it will not make a finding of incapacity in the absence of such evidence.

Increasingly, human rights jurisprudence is recognizing that the safeguard of medical evidence, if relied upon exclusively or excessively, can become a source of arbitrariness in itself. In the context of Article 8 of the ECHR, medical evidence is relevant to whether P has capacity, but case law has emphasized that it is for the judge to decide, therefore an overly deferential approach to the expert evidence may raise concerns about Article 8 compliance. ¹³¹ The need to exercise rigorous scrutiny of the evidence on capacity is further amplified by the CRPD. If courts routinely treat the issue of capacity as a medical construct, or fail to exercise their own judgement on the issue, this would be to further endorse a medical model of capacity and could constitute a ‘custom or practice’ which discriminates against those with disabilities. ¹³² While it has not been the intention of the author to provide a sustained analysis of the challenges posed by CRPD commitments, it is clear that CRPD values underline the need for the court to ‘test’ the evidence and to be alert to the risk of tensions and incompatibilities between the norms and values underpinning the expert evidence on P’s capacity and the principle of non-discrimination.

Do medical practitioners tend to take an ‘over-inclusive’ approach to incapacity?

It is only to be expected that different disciplines should be oriented towards different perspectives on the same issue. The medical view generally on incapacity is often assumed to be over-inclusive in its approach to incapacity, due to a nigh inevitable risk-averse approach to risk management and a divergence in values when compared with the autonomy promoting principles of the MCA. Medical opinion is frequently assumed to be more inclined to focus on consequences and ensuring a ‘good clinical outcome’, whereas legal perspectives tend to be more concerned with principles. ¹³³ This much is supported by research conducted elsewhere which repeatedly identifies the medical perspective as inherently defensive and risk averse, as pessimistic about patients’ capacity, ¹³⁴ adopting an approach which has the effect of minimizing physical harm to health ¹³⁵ and as more likely to identify a means of using compulsion ¹³⁶ ; a state of affairs for which the law bears no small part of the blame. The dangers of over-reliance on psychiatry in judgments on capacity therefore include the possibility that the precepts of psychiatry and medicine may work against the statutory presumption of capacity. The House of Lords Select Committee on the MCA referred to a great deal of evidence suggesting that paternalism in the name of ‘protection’, ‘safeguarding’ and ‘risk aversion’ was prevalent in both healthcare (and social work) and concluded that this culture presented barriers to realizing the empowering ethos of the MCA. ¹³⁷ A finding that the courts only rarely depart from professional opinion on capacity could, therefore, signal that the presumption of capacity is being neutralized. But, while it seems feasible that the medical perspective on capacity could incline to being over-inclusive, erring on the side of protection of P from physical risks and thereby minimizing exposure to post hoc criticism, this position needs careful scrutiny. First, it is surely an over-simplification to suggest that there is a monolithic ‘medical’ view. Secondly, there is little evidence to support a ‘medical perspective’ on capacity as compared with other disciplines. Most studies of inter-rater reliability look only for consistency between psychiatrists rather than testing for consistency across disciplines. ¹³⁸ Finally, accepting that doctors take an ‘over-inclusive approach’ to incapacity would be to ignore those studies which suggest entirely the opposite, for example, the study published in The Lancet shortly before the MCA became law, suggesting that hospital doctors were significantly underestimating the prevalence of incapacity among their elderly patients. ¹³⁹ To be certain that heavy reliance on psychiatrists in the CoP is problematic, we would need to know far more about inter-rater reliability between decision makers from different perspectives, for example, medical professionals and lawyers, or psychiatrists and psychologists. What is perhaps clear, however, is that capacity assessment is often only triggered where P refuses (rather than consents to) the course of action being recommended by the medical or social care professionals. ¹⁴⁰

Whether the expert witness has a treatment relationship with P or is invited to give evidence as an independent expert with no prior relationship with P, an over-inclusive approach to capacity may be present. It is noteworthy that whereas the risk of professional bias arising out of treating relationships is clearly identified in the judgments, ¹⁴¹ the potential for more generic professional biases was not explicitly acknowledged. However, it is perhaps the non-treating expert who should give more cause for concern here. These experts are more likely to give repeat performances in CoP proceedings and, therefore, any personal or professional perspective they have on capacity, or the appropriate balance between preserving P’s autonomy protecting P, will likely have a bigger impact on mental capacity hearings generally.

The professionalization of expert capacity assessment and ‘hidden law making’

Further tensions are evident when we examine the level of expertise assumed to be necessary for giving evidence on capacity. Familiarity with the MCA and the test for incapacity is a requirement for many roles in health and social care. Yet increasingly, the business of giving evidence on mental capacity is becoming professionalized. Since changes to the rules on transparency in CoP proceedings effective from January 2014, the identity of expert witnesses is now usually made known in the court’s judgment. ¹⁴² In the context of the data set of judgments on mental capacity used in this research, it is clear that there is a relatively small ‘elite’ of professional capacity assessors who advertise their services as independent expert witnesses and who are repeat players ¹⁴³ in CoP cases. The court undoubtedly benefits from experts who have accumulated substantial expertise as specialists in their field, perhaps with specific medical conditions, and who are familiar with court processes and protocols. However, too little is known about the broader implications of relying on a relatively small group of experts.

While it is recognized that the term ‘repeat players’ in the context of highly specialized experts is potentially stigmatizing, ¹⁴⁴ the intention is not by any means to impugn the motivations or competence of those individuals, but to stress that the existence of repeat players cannot be denied and should not be ignored. For example, one such expert, a consultant psychiatrist with a particular specialism in autism, is described by Judge Cardinal as ‘an eminent consultant psychiatrist…who spends a great deal of his time undertaking forensic work in the Court of Protection’. ¹⁴⁵ Others include a consultant psychiatrist who directs a company advertising his expert witness services who is mentioned in no less than 13 of the 155 health and welfare cases in the author’s data set, and there are many who appear more than five times. It is important not to place too much reliance on these statistics but also to note that judgments will not necessarily capture all repeat involvements, as many capacity issues will be resolved without a court hearing or in unreported judgments. Organizations such as ‘Psychiatry direct’ ¹⁴⁶ provide a network of professionals available to provide expert witness reports and it is clear that a number of witnesses derive a substantial secondary income from producing medico-legal reports. The difficulty of accessing expert witness reports in this area is widely acknowledged, but we need to be alert to the risk that relying on a concentrated resource of expertise ¹⁴⁷ could have a significant impact on the shape of mental capacity law. As expert witnesses give repeat performances in court, their opinions and preconceptions become known and can directly inform their selection in future cases. ¹⁴⁸ For example, a consultant psychiatrist with expertise in eating disorders generally appears in reported judgments concerning patients with anorexia nervosa ¹⁴⁹ and his evidence is generally preferred. With a wealth of accumulated clinical experience, he is clearly well placed to give evidence on the impact and progression of the disease. However, the judgments tend to endorse the expert’s expressed views on capacity, notwithstanding that this expert evidence tends to treat the capacity question as determined by the condition P was suffering from. ¹⁵⁰ This expert evidence therefore suggests a particular view of the relationship between anorexia and mental capacity which appears to be in conflict with MCA and possibly CRPD principles. ¹⁵¹

Far too little is known about how expert witnesses are selected, how frequently they appear in court, how their experience of litigation shapes their testimony and how their views on capacity generally have shaped CoP case law. Recent scholarship on hidden law making has drawn attention to the potential for lawyers who are repeatedly involved in similar cases to have a significant impact on the shape of the law. ¹⁵² The authors comment in particular on repeated use of the same counsel with a particular specialism for similar cases and on the role of the Official Solicitor. The frequency with which some expert witnesses appear in the CoP could give rise to similar concerns that the players in court are having an obscured impact on law making in the relevant area.

If successful, the stated aim of more frequently resorting to an SJE in CoP cases ¹⁵³ could exacerbate these potential problems. Mirroring the Civil Procedure Rules, the CoP rules empower the court to direct that an SJE should be used. ¹⁵⁴ There will be increasing pressure to resort to this option given the increasing costs and burgeoning case load of the CoP. ¹⁵⁵ Yet, it is arguable that the SJE option should only exceptionally be considered suitable for a determination of whether P has decision-making capacity. Where there is doubt about P’s capacity, it is simply not appropriate to instruct an SJE as this goes against the need for epistemic diversity on the issue of mental capacity and also creates tensions with the need for the court to rigorously scrutinize the evidence. Admittedly, there is a certain irony in questioning whether the courts are over-reliant on expert evidence, while simultaneously cautioning against reducing the breadth of expert evidence by resorting to SJEs. But it is argued that the poignancy of the decision itself, and its normative and multidimensional nature require that in all but exceptional cases, the court should be given a spread of evidence from which to form a view. Having more than one expert report broadens the evidence base and assists the court in its task of robust scrutiny of the evidence. ¹⁵⁶ Otherwise, there is a risk that the SJE’s view would go unchallenged, that value judgements would go unscrutinized and that alternative possibilities would be missed. Lord Neuberger speaking extra-judicially made public his general concerns about the impact of SJEs on ‘who decides’. ¹⁵⁷ Given the findings in this research regarding deference to expert witness opinion, an increased use of single experts could effectively accord gatekeeper status to psychiatrists in the assessment of P’s capacity in the courtroom, a situation which would be incompatible with the social nature of capacity.