Civil & Criminal Procedure Rules for Psychiatric Reports

Most of the psychiatric reports that our consultants produce are for courts of law. The purpose is to allow the court to reach an informed opinion as to various factors that need to be taken into account that the court can not decide for itself. Psychiatric reports are often requested for capacity assessments i.e. to determine if the individual has the mental capacity to follow proceedings or not. In other cases, reports are required for pre-sentencing where it is noticed that the individual in court may be presenting with mental health issues or may have had previous history of being psychologically unwell. In such cases, a hospital order may be given rather than placing a vulnerable individual in prison. There are some cases in which psychiatrists may recommend further treatment to assist the individual, although medical treatment is not the purpose of the report.

As these reports are to be presented to courts, the courts have set out rules for experts writing them. These are set out in either the criminal procedure rules or the civil procedure rules, depending on if the case is a civil or criminal matter.

The Relevant Legislation

The main legislative sources of current requirements governing psychiatric reports are found in the following.

  1. Criminal Procedure Rules 2020 – Part 19 – Expert Evidence [1]
  2. Civil Procedure Rules- Rules & Practice Directions –  Part 35 – Experts and Assessors [2]

Although there are minor differences in these, we will look at the requirements of both sets of rules for a) the expert in his duty to the court and b) what a report must include. Further details of the rules can be found in the reference links below this article.

The Duty of the Expert is to the Court

On occasions, private clients seeking to aid their case by instructing a psychiatric report are not clear that the duty of the expert is to the court and not to them as the instructing party. This means a report may not be helpful in their case.

Both the civil and criminal procedure rules are very similar in their requirements with the criminal procedure rules being far more detailed in respect of the duty of the expert to the court.

“Experts – overriding duty to the court – 35.3

(1) It is the duty of experts to help the court on matters within their expertise.

(2) This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.”

[Civil Procedure Rules 35.3]

 “Expert’s duty to the court

19.2.—(1) An expert must help the court to achieve the overriding objective—

(a) by giving opinion which is—

(i) objective and unbiased, and

(ii) within the expert’s area or areas of expertise; and

(b) by actively assisting the court in fulfilling its duty of case management under rule 3.2, in particular by—

(i) complying with directions made by the court, and

(ii) at once informing the court of any significant failure (by the expert or another) to take any step required by such a direction.

(2) This duty overrides any obligation to the person from whom the expert receives instructions or by whom the expert is paid.

(3) This duty includes obligations—

(a) to define the expert’s area or areas of expertise—

(i) in the expert’s report, and

(ii) when giving evidence in person;

(b) when giving evidence in person, to draw the court’s attention to any question to which the answer would be outside the expert’s area or areas of expertise;

(c) to inform all parties and the court if the expert’s opinion changes from that contained in a report served as evidence or given in a statement; and

(d) to disclose to the party for whom the expert’s evidence is commissioned anything—

(i) of which the expert is aware, and

(ii) of which that party, if aware of it, would be required to give notice under rule 19.3(3)(c).

[Note. The Practice Direction lists examples of matters that should be disclosed under this rule and rule 19.3(3)(c).]”

[Criminal Procedure Rules part 19.2]

As part of our service at Psychiatric Report Services Ltd we along with our panel of consultant psychiatrists can assist clients in answering any questions about how helpful a report may be for a particular case. We can be contacted by clicking here.

What Should an Expert Psychiatric Report Contain?

Both criminal and civil procedure rules have requirements that must be included in all reports written for courts.

The Civil Procedure Rules state the following

“Contents of report – 35.10

(1) An expert’s report must comply with the requirements set out in Practice Direction 35.

(2) At the end of an expert’s report there must be a statement that the expert understands and has complied with their duty to the court.

(3) The expert’s report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written.

(4) The instructions referred to in paragraph (3) shall not be privileged(GL) against disclosure but the court will not, in relation to those instructions –

(a) order disclosure of any specific document; or

(b) permit any questioning in court, other than by the party who instructed the expert,

unless it is satisfied that there are reasonable grounds to consider the statement of instructions given under paragraph (3) to be inaccurate or incomplete”

[Civil Procedure Rules 35.10]

The Criminal Procedure Rules state the following

“Content of expert’s report

19.4.  Where rule 19.3(3) applies, an expert’s report must—

(a) give details of the expert’s qualifications, relevant experience and accreditation;

(b) give details of any literature or other information which the expert has relied on in making the report;

(c) contain a statement setting out the substance of all facts given to the expert which are material to the opinions expressed in the report, or upon which those opinions are based;

(d) make clear which of the facts stated in the report are within the expert’s own knowledge;

(e) where the expert has based an opinion or inference on a representation of fact or opinion made by another person for the purposes of criminal proceedings (for example, as to the outcome of an examination, measurement, test or experiment)—

(i) identify the person who made that representation to the expert,

(ii) give the qualifications, relevant experience and any accreditation of that person, and

(iii) certify that that person had personal knowledge of the matters stated in that representation;

(f) where there is a range of opinion on the matters dealt with in the report—

(i) summarise the range of opinion, and

(ii) give reasons for the expert’s own opinion;

(g) if the expert is not able to give an opinion without qualification, state the qualification;

(h) include such information as the court may need to decide whether the expert’s opinion is  sufficiently reliable to be admissible as evidence;

(i) contain a summary of the conclusions reached;

(j) contain a statement that the expert understands an expert’s duty to the court, and has complied and will continue to comply with that duty; and

(k) contain the same declaration of truth as a witness statement.”

[Criminal Procedure Rules 19.4]

As can be seen the criminal procedure rules are more detailed than the civil procedure rules. The Civil Procedure Rules state that the report must be in line with Practice Direction 35 – Experts and Assessors [3]. The requirements for civil reports are detailed in sections 3.1 to 3.3 of this. Most of the points contained in sections 3.2.1-9 of Practice Direction 35 are the same as sections a to k of the Criminal Procedure Rules part 19.4. In addition to the statement of truth, for civil cases the expert must make a statement about being  aware of the requirements of Part 35, this practice direction and the Guidance for the Instruction of Experts in Civil Claims 2014 [Practice Direction 35 section 3.2.9.b]

Compliant Psychiatric Reports

All reports that are produced by experts instructed through Psychiatric Report Services Ltd are compliant with either Civil or Criminal Procedure Rules. We provide a reliable service where all our reports are checked for compliance with the rules.

There are many other aspects of both sets of rules that can be discussed in future articles. For further reading please refer to the references below that link to the rules directly. To contact the author please send a message by clicking here.

Psychiatric Report Services Ltd