A single expert jointly instructed to assess capacity should not be replaced, but should instead provide an additional report to ensure fairness without increasing costs or delay, the Court of Protection has decided.

In DA (Whether to replace a Single Joint Expert), Re  His Honour Judge Burrows, sitting as a nominated judge of the Court of Protection, dismissed an application for the replacement of a jointly instructed expert with a new one or for permission for the respondents to the case to instruct their own. The case centres on the capacity of an 80-year-old man to conduct litigation, manage his property and affairs, revoke lasting powers of attorney, make a will, decide care arrangements and decide on contact.

The expert Dr Parvez, a consultant psychiatrist with expertise in older age psychiatry, was agreed by the parties and instructed to assess DA’s capacity. DA disagreed with Dr Parvez’s assessment of him and was ‘unhappy’ with how the assessment was conducted.

The application, brought by DA and other respondents, argued there ‘are “real, genuine and justified concerns” about Dr Parvez’s report and his answers to the questions’. The respondents said the expert failed to properly discharge his duties to the court and his report ‘lacks the essential rigour needed where capacity is the foundational issue, particular in a contested case’.

Sitting at Manchester Civil Justice Centre, the judge understood ‘why Dr Parvez took the approach he did’ in a case were ‘serious allegations’ of exploitation are made by DA’s daughter against those who look after DA and the allegations are denied. The way he approached the issue of capacity was ‘permissible’, the judge said adding: ‘It was not improper for him to approach the matter as he did.’

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The judge agreed with the criticism of some of the questions the expert asked which were ‘primarily a test of knowledge rather than a test of ability to retain information’ but found Dr Parvez had not acted improperly. Dr Parvez’s report ‘is not so poor that I should jettison it now and start again,’ the judge said.

Finding an additional report was necessary but refusing to appoint a second expert, the judge said: ‘Permitting the respondents ... to obtain a further report is a proportionate departure from the single joint expert norm in this particular case.’

The ‘additional focused report can be obtained without material delay’, the judge said.