Psychiatric evidence in consent and capacity claims
Independent psychiatric opinion where a claim turns on consent: whether the patient had capacity to consent to or refuse treatment, how their mental state affected what they understood, and the psychiatric harm that followed. Free initial screening call and fixed fees with no hidden charges.
- Mental Capacity Act 2005
- Claimant, defendant and SJE
- Structured for CPR Part 35
When consent is in dispute
Some clinical negligence claims turn on whether the patient had capacity to consent to or refuse treatment at the relevant time. Dr Pradhan gives evidence on capacity to consent, focusing on whether the person could understand, retain, use or weigh the information and communicate the decision, and on the effect of acute distress, delirium, psychosis, depression, medication or cognitive disorder on their decision-making.
Other claims concern what the patient was told. Where a material risk was not explained and then occurred, the psychiatric evidence can address the patient’s mental state at the consultation and the psychiatric injury that followed.
Dr Pradhan is section 12(2) approved, holds an MA in Medical Ethics and Law, and is instructed in Court of Protection work.
What the report covers
Reports in consent and capacity claims commonly address:
- Capacity to consent to treatment on a past date
- Capacity to refuse treatment or to leave hospital
- Self-discharge against medical advice
- Delirium, psychosis, depression or cognitive disorder at the time
- The effect of medication or acute distress on decision-making
- Whether the patient could understand the risks explained
- How capacity was assessed at the time, and what was recorded
- Treatment given in the patient’s best interests
- Capacity that fluctuated over the period in question
- Psychiatric injury after a risk that was not explained
- Treatment needs and prognosis
- Joint statements, supplementary questions and second opinions
Send a note of the decision in question, its date and a short outline of the allegations, and Dr Pradhan will confirm the scope of opinion and a fixed fee.
Submit an enquiryWhere consent and capacity arise in a claim
Consent questions usually arise in one of four ways:
Treatment without valid consent
The patient says they did not consent, or could not have. The question is whether they had capacity and, if not, whether the treatment was given lawfully in their best interests.
A refusal or self-discharge
The patient refused treatment or left hospital and came to harm. The question is whether they had capacity to make that decision at the time.
Risks not explained
A material risk was not explained and then occurred. The psychiatric evidence addresses the injury and, where relevant, the patient’s mental state when the risks were discussed.
Psychiatric treatment
The patient was given psychiatric treatment or medication. The question is what they were told, and whether they were able to understand it.
Capacity, consent and the law
In England and Wales, capacity is judged under the Mental Capacity Act 2005. A person is presumed to have capacity unless it is shown that, because of an impairment of, or a disturbance in the functioning of, the mind or brain, they cannot understand, retain, use or weigh the information relevant to the decision, or communicate their decision. Scotland and Northern Ireland have their own capacity law.
Doctors must also take reasonable care to make patients aware of material risks and reasonable alternatives, as the Supreme Court held in Montgomery. For claims in England and Wales the report is structured for CPR Part 35; reports for Scotland and Northern Ireland are prepared to the requirements of those courts.
A person who takes reasonable steps to establish capacity, and treats someone they reasonably believe lacks it in that person’s best interests, is protected as if the patient had consented. The protection does not extend to negligence in carrying out the treatment.
Related pages
Consent and capacity questions
If your question is not answered here, call and Dr Pradhan will advise on scope and timescale.
Call 0121 752 6065The patient has died. Can their capacity at the time still be assessed?
Yes. A retrospective opinion can be given from the records and other evidence of the patient’s presentation at the time, with the limits of that opinion stated.
The patient left hospital against advice and came to harm. Is that a capacity question?
Often. The report addresses whether the patient had capacity to decide to leave, what the clinicians knew, and the psychiatric aspects of the decision to let them go.
Can Dr Pradhan say whether a surgeon explained the risks properly?
No. The risks of the procedure and the reasonable alternatives are for an expert in that field, and whether a risk was material is for the court. Dr Pradhan can address the patient’s mental state at the time and the psychiatric injury that followed.
Does the Mental Capacity Act apply in Scotland and Northern Ireland?
No. It applies in England and Wales. Scotland has the Adults with Incapacity (Scotland) Act 2000, and Northern Ireland has its own law, including the Mental Capacity Act (Northern Ireland) 2016; reports for those jurisdictions use the relevant law.
How quickly can a report be delivered?
Usually 1–2 weeks from assessment. A retrospective opinion from the records depends on their volume, and the timescale is confirmed at the outset.
Instruct Dr Pradhan on a consent or capacity question
Send a note of the decision in question and its date, the funding route and any limitation or hearing dates.
- Phone0121 752 6065
- Emailinfo@
doctorpradhan.co.uk - Consulting Rooms NationwideAbacus Court, Harborne, Birmingham B17 0HH
Please do not include medical records or a detailed personal history in this form. Dr Pradhan will confirm how to send the papers once the instruction is agreed.
Case enquiry
Fields marked * are required.
Instructions are accepted from solicitors only. Read our privacy policy before sending personal information.
If the matter is urgent, call 0121 752 6065.