Front Page

The top section shows the title of the action:

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  the name of the court top left (e.g. ‘In the Central Criminal Court’);

  
  
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  the case number top right; and

  
  
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  the party or parties below and central (e.g. R v Daniel McNaughtan).

The second section identifies the author of the report (e.g. ‘Report of Dr. E. T. Monro, Consultant Psychiatrist’). It can be omitted and incorporated in the fourth section, but it must stand out. I once saw a report which was signed illegibly and nowhere in the report was the name of its author.

The third section should include:

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  ‘On the instructions of’ – name and address of those instructing the expert;

  
  
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  ‘Who act on behalf of’ – person or party, such as ‘The defendant’;

  
  
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  ‘Their reference’;

  
  
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  ‘Specialist field’ (e.g. ‘Child and adolescent psychiatry’);

  
  
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  ‘Subject matter’ (e.g. ‘Psychiatric assessment of the Defendant’);

  
  
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  ‘Date(s) of instruction(s)’;

  
  
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  ‘Date of report’;

  
  
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  ‘Report reference’;

  
  
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  ‘Date of consultation’;

  
  
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  ‘Place of consultation’;

  
  
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  Mode of consultation – ‘Face-to-face’ or ‘Live link’;

  
  
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  ‘Consent’ – ‘Written’, ‘Verbal’ or ‘Not applicable’.

The fourth section should include:

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  Name of expert;

  
  
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  Post-nominal qualifications;

  
  
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  Status/appointment;

  
  
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  GMC/MC number;

  
  
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  Contact details, including:

  
  
  
  
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     o full professional/correspondence address;

     
     
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     o telephone number(s);

     
     
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     o email address;

     
     
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     o perhaps also name of secretary/personal assistant,

     
     
     
     
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        • their email address; and

        
        
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        • telephone number if different.

     
     

  
  

Contents Page

Help the reader to navigate their way round the report. How detailed it is will depend on the report’s length and complexity. Only in very short reports is this unnecessary.

Introduction

‘The Background to the Case and Issues’

Investigation (of Facts and Assumed Facts)

The purpose of this part of the report is to explain how the expert opinion has been reached. Some readers may not know, or may misunderstand, how a psychiatrist works. Furthermore, the expert has a duty to ‘furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form his own independent judgment by the application of these criteria to the facts proved in evidence’ (Davie v Edinburgh Corp. (No. 2), 1953 SC 34).

The first section is about ‘Methodology’. In criminal cases, even though the Law Commission’s proposals on the determination of evidentiary reliability (Law Commission 2011) have not become law, they are now embodied in the CrPR (see Chapter 1, ‘Reliability’). They may affect practice in other jurisdictions. It may therefore be wise, if not necessary, to indicate that clinical practice depends partly on knowledge for which there is a sound scientific evidence base and partly on experience-based knowledge which has stood the test of time, but lacks a robust foundation in the rigorous research that forms the basis of ‘evidence-based medicine’. Indicate that, in relying on both categories, you have done so in accordance with a responsible body of psychiatric practice.

Thus, explain how the diagnosis has been reached, explain how, for example in a personal injury case, the opinion on causation has been reached, explain how the particular prognosis has been reached and explain why you recommend particular treatment or have commented, as you might, on the treatment already given.

Particularly in relation to treatment, in family cases, it is now usual to ask that recommendations for treatment comply with National Institute of Health and Clinical Excellence (NICE) guidelines. This is not always going to be possible. Thus, it may be necessary to point out that you have relied on approaches that have wide acceptance by doctors and, where possible, given weight to treatments for which there is the strongest evidence base with regard to effectiveness and safety. However, there are many treatments that are accepted as effective, but for which there have not been trials that satisfy the most stringent criteria of evidence-based medicine or have been endorsed by NICE.

In family cases, you must describe your professional risk assessment process, but indicate its limitations (Royal College of Psychiatrists 2008), and the process of differential diagnosis. Other courts may soon expect this. The key is transparency.

All of this can be moved to your report’s Appendix 2, ‘The Process of Psychiatric Assessment’.

Under ‘Interview and examination’, set out the details of the consultation. Say whether anyone else was present and, if so, what part, if any, they took during the consultation. State that, unless otherwise indicated, the history is that obtained from the subject at the consultation. It is hearsay, which will either be admitted or may have to be proved (see Chapter 1, ‘The Role of the Medical Expert Witness’). If the consultation was by live link make this clear and refer to any technical or other difficulties or limitations.

Refer to any particular circumstances such as the place, time or any constraints, such as inadequate time due to prison routine or the potentially inhibiting presence of someone such as a police or prison officer, partner or care worker.

If a trainee has assisted, name her and cross-refer to an extra appendix giving details of her qualifications, training and experience (see Chapter 3, ‘Training in Report Preparation’). If you have obtained the views of colleagues, identify them. You must disclose the fact and nature of any discussion of ‘the content of a proposed report in detail with another expert under a peer review arrangement’ (Pinkus v Direct Line Group (EWHC QB, unreported, 2 January 2018). This only applies where the peer provides ‘constructive input’; it does not apply to proof-reading.

Make clear that, apart from your knowledge of the practice of psychiatry, unless otherwise indicated, the only facts within your own knowledge are your findings on examination of the subject.

If an informant has been interviewed, identify them and explain this.

Occasionally, reports are prepared without consulting with the subject, because the subject is dead, the court has ordered it or the subject has consented.

If so, head this section ‘Basis of Report’. Make it clear that the report is based on a study of records only, why this is so and indicate any potential limitations. Justify the decision to proceed on such a basis. Indicate a willingness to reconsider your opinion following a consultation. In AWLP, the GMC states: ‘If you are asked to give an opinion about a person without the opportunity to consult with or examine them, you should explain any limits this may place on your opinion. You should be able to justify the decision to provide your opinion.’ A report which is prepared without consulting with the subject of the report may be ruled inadmissible or little weight attached to the opinion therein. In R v Ibrahim [2014] EWCA Crim 121, the decision of the trial judge not to admit expert psychiatric evidence as to the appellant’s attention deficit hyperactivity disorder (ADHD), in part because it would be ‘very unsatisfactory to admit expert evidence from a medical expert who had not interviewed or met the defendant’, was upheld and the Court of Appeal added that the expert’s ‘speculation about what the appellant was thinking and why he acted as he did was of no great assistance. He had never met the appellant.’

If someone has carried out testing, she should be identified here with a cross-reference to the extra appendix which sets out her qualifications, relevant experience and any accreditation (CrPR 19.4(1)(e)). State whether or not you supervised the testing (CPR 35 PD 3.2(5)). In Scotland (Crown Office and Procurator Fiscal Service), whether or not you supervised the work, you have to notify the prosecutor as the court will accept such evidence as hearsay evidence.

Under ‘Documents and Materials’, refer to your report’s Appendix 4 in which are listed at least the ‘documents, statements, evidence, information … which are material to the opinions expressed or upon which those opinions are based’ (B v Nugent Care Society) and which may also include audiotapes, DVDs, photographic exhibits, etc. It must be accurate. In Williams v Jervis [2009] EWHC 1837 (QB), the judge imposed a financial penalty on the defendant whose orthopaedic expert was unclear in his evidence as to what medical records, reports and witness statements he had seen prior to writing his report.

Some counsel and solicitors hold that all documents and materials should be listed. Others hold that if you list everything, the other side is entitled to see everything and so you should not refer to documents that your instructing solicitors do not intend to disclose for the time being, such as draft witness statements or a report on liability and causation in a medical negligence case because, if they are listed, the other side will be entitled to see them. Boyle (2016, p. 57) says that ‘any document referred to by the expert on the face of the report is, in effect, disclosed’, but the actual test is whether the other side needs the document to understand your opinion or if you have used that document as a significant part of the process of forming your opinion. In Anglia Water Services Ltd v HMRC [2017] UKFTT 0386 (TC), an expert was criticised for listing in his report only the documents which he considered relevant, but the court observed that CPR 35 PD 3.2(2) ‘requires details only of material relied upon’ (emphasis in the original).

In Ireland, the listed documents may or may not be disclosable. In Doherty (A Minor) v North Western Health Board [2005] IEHC 404, it was held that there was no obligation to disclose some of the documents referred to by the experts as they did not come within the definition of a report and could not be considered as a like matter to a map, drawing, photograph, graph, chart or calculation.

You must not fail to list a document containing information that is relevant to your opinion. If you do not, there is the danger that you will include in your report information which could only have come from an undisclosed document which would make you vulnerable in cross-examination. In an application for disclosure of a document or report, other than in Ireland (see above), the other side will probably succeed if you have seen it and relied on it, but not if you have seen it, read it and definitely not relied on it. If you make clear that a particular document is not material to your opinion, it ought to remain privileged. An application for disclosure may succeed if there is some reason to believe that there is something inaccurate or misleading about your statement of the instructions you have received.

If you are sent ‘background material’ and asked not to refer to it in your report, return it to the solicitors unread. It may contain information relevant to your opinion, in which case you will have to refer to it.

In a criminal case in England and Wales, the expert cannot rely on the contents of a witness statement if a notice has been given under the Criminal Justice Act (CJA) 2003, s 127 that it is not in the interests of justice for the expert to base an opinion or inference on the statement.

As ‘instructions’ include all materials sent to the expert, reports in civil cases prepared in compliance with the Guidance (para. 55) should include the dates on which the materials were received.

If documents are missing, illegible or incomplete, point this out. Identify materials that have not been produced with the report, such as original medical or other professional records. This may include any questionnaires completed by the subject of the report, but good practice is to attach them as an appendix. Be prepared to reveal everything.

If important documents have not been supplied or obtained, say so, explain why they have not been obtained and indicate why they are important, how information from them may make a material difference to your opinion.

A reference to ‘Medical Terms and Explanations’ can be included here or go at the end of the Introduction. Explain that any medical or technical terms will be highlighted, for example emboldened, and included in a glossary that appears as your report’s Appendix 5 or give the definition or explanation as a footnote when it is first used. It should satisfy the GMC’s AWLP: ‘You should explain any abbreviations and medical or other technical terminology you use. Diagrams with explanatory labels can be useful.’ It may include acronyms, symptoms, signs, diagnoses, drug names, forms of treatment and definitions of grades such as ‘speciality registrar’, etc.

If you rely on published or unpublished research or other authoritative material, state this under ‘Research’ or ‘Authorities’ and cross-refer to your Appendix 6, a list of references. These are references to cited work which supports your opinion or the underlying reasoning. It is not a generalised list, but you can list here any ‘[r]elevant extracts of literature or any other material which might assist the court’ (B v Nugent Care Society). In a clinical negligence case in England and Wales, if you rely on unpublished work, you must provide a copy of it with the report. This is good practice in general. Supply copies or extracts, with sufficient pages from before and after the extract for it to be seen in context.