London Borough of Southwark v NP & Ors [2019] EWCOP 48

This case, which considered the treatment and living arrangements of NP, a 17 year-old suffering from cerebral palsy and atypical anorexia, is of interest not only because of the restrictions that were granted to limit NP’s contact with her mother following her discharge from hospital (there was evidence that the mother undermined NP’s refeeding regime, even though she had been at risk of death, and the home conditions were said to be ‘squalid’), but also because of the observations made by Hayden J about case management. The following general principles were identified:

  • Delay should be avoided – “Any avoidable delay is likely to be inimical to P’s best interests.”
  • Effective case management can avoid delay – “thought should always be given to whether, when and if so in what circumstances, the case should return to court. This will require evaluation of the evidence the Court is likely to need and when the case should be heard. This should be driven by an unswerving focus both on P’s best interests and the ongoing obligation to promote a return to capacity where that is potentially achievable.”
  • Parties should regard it as an ongoing obligation to monitor the development of the case and to seek directions when it appears that further evidence is required which requires case management.
  • Expert evidence should be limited to that which is necessary to assist the court to resolve the issues in the proceedings.
  • The key duties of any experts are:
  • to help the court on matters within the expert’s own expertise.
  • to give an independent opinion uninfluenced by the pressures of the proceedings.
  • to assist the court by providing objective, unbiased opinion on matters within the expert’s expertise, and not to assume the role of an advocate.
  • to consider all material facts, including those which might detract from the expert’s opinion.
  • to make it clear – (a) when a question or issue falls outside the expert’s expertise; and (b) when the expert is not able to reach a definite opinion, for example because the expert has insufficient information.
  • to communicate any later material change of view to all the parties without delay, and when appropriate to the court.
  • Lawyers must ensure any witnesses are furnished with all relevant material which is likely to have an impact on their views, conclusions and recommendations.
  • Use meetings of experts or professionals as a useful tool to share information and to identify areas of agreement and / or disagreement, bearing in mind that the evidence of clinicians, experts, social workers, care specialists etc should always be regarded as individual features of a broader forensic landscape in to which must be factored the lay evidence.
  • When evaluating the significance of expert evidence, identify when the issues being considered are at the frontier of medical or expert knowledge, and acknowledge that “yesterday’s orthodoxies may become today’s heresies”.
  • Beware of ‘confirmation bias’, where witnesses reach for evidence that supports their proffered conclusion without properly engaging with evidence that may weaken it.
  • Consideration must always be given to relevant, proportionate written questions to an independently instructed expert.

The full judgement can be read here

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