IN THE COURT OF PROTECTIONCase No:

IN THE MATTER OF THE MENTAL CAPACITY ACT 2005

BETWEEN:

[ ]

Applicant

and

[ ]

P and First Respondent

______

ORDER FOR THE JOINT INSTRUCTION OF EXPERTS[1]

______

made by District Judge []

at []

on []

UPON hearing [counsel for the Applicant etc]

AND UPON recording the view of the court that:

(i)The expert evidence provided for in this order is necessary to assist the court to resolve the issues in these proceedings, having regard to:

(a)the issues to which the expert evidence relates;

(b) the questions which experts will answer;

(c) the impact which giving permission for the expert evidence is likely to have on the timetable, duration and conduct of these proceedings;

(d) the consequences of any failure to comply with any direction of the court about expert evidence; and

(e) the cost of the expert evidence;

(ii)The evidence to be provided by the experts cannot be otherwise obtained, including by way of report ordered under section 49 of the Mental Capacity Act 2005; and

(iii)The costs to be incurred in the preparation of the expert evidence are a wholly necessary, reasonable and proportionate disbursement on the funding certificate of [P]. Dr [Independent Psychiatrist]’s hourly rate of £…..and the estimated costs of his report are reasonable in the light of his qualifications, experience and expertise and in the light of the issues that arise in this case; Mrs [Independent Social Worker]’s hourly rate of £…..and the estimated costs of her report are reasonable in the light of his qualifications, experience and expertise and in the light of the issues that arise in this case.[2]

IT IS ORDERED THAT:

  1. The parties shall have permission jointly to instruct:

(a)an independent expert consultant psychiatrist to report upon [P]’s capacity to decide upon [ ]; and

(b)an independent expert social worker to report on upon [P]’s best interests with regard to [ ].

  1. The Official Solicitor[3] shall send agreed letters of instruction to the experts by 4pm on [ ]. The Official Solicitor shall send drafts of the letters to the Applicant by midday on [ ] and shall consider any amendments to the letters of instruction suggested by the Applicant, if received by midday on [ ]. In the event of disagreement [the Applicant may send side letters to accompany the Official Solicitor’s letters of instruction] or [the rival letters of instruction shall be sent, together with short written submissions, to the court for it to decide upon the content of the letter of instruction on the papers].
  1. The experts’ reports shall be provided to the Official Solicitor by 4pm on [ ] and the Official Solicitor shall forward them to the applicant forthwith.
  1. The cost of the experts’ reports shall be shared equally between the Applicant and [P]. The proposed assessments, enquiries and reports (as set out in paragraph 3 of this order) are vital to the resolution of this case. The costs to be incurred in the preparation of such reports are wholly necessary, reasonable and proportionate disbursements on the funding certificates of [P]. All invoices shall be settled within 28 days.[4]
  1. The experts have permission to interview [P] and be provided with and consider all documents disclosed in these proceedings including [P]’s records. The experts have permission to speak with any professionals and anyone else agreed between the parties regarding the matters upon which s/he is instructed to report. The independent expert social worker shall have permission to disclose information (the content and recipients of which shall be agreed in advance between the parties), about [P’s] circumstances in order to make necessary enquiries.
  1. No order as to costs.

[1]Such an order would usually be included in a more wide-ranging directions order, most usually that made after the Case Management Conference.

[2] This more stringent approach to expert evidence forms part of the Case Management Pilot and associated changes to the Court of Protection Rules but it is advisable to follow this approach in cases that are not part of the Case Management Pilot, given that the use of expert evidence is one of the key focus areas in the intended change to the culture of the Court of Protection.

[3]Or another litigation friend for P if the Official Solicitor has not been appointed. If the applicant in such a case is a public body, one would normally expect that the public body would take the lead in the instruction.

[4]This paragraph envisages that P is publicly funded. If not, then the provisions relating to the split of the costs and the settlement of the invoices would remain.