Medico-legal reports: how to instruct and common mistakes to avoid

Here, we look at the practicalities involved in getting a good medico-legal report. We have previously explained what a medico-legal report is and that article should be read alongside this one.

These reports can be a game changer in cases involving vulnerable clients, but in the current climate it is more important than ever that they stand up to scrutiny and are as strong as possible. This can only be done by ensuring the clinicians that you instruct have appropriate experience, relevant instructions are provided and a thorough review of the report is done. This is to ensure that not only is the report helpful for your client’s case but also that it will be considered to be independent and within the writer’s remit.

How to prepare the instructions

The instructions must be clear and specific to the individual and should state the type of report you require, although this should have been agreed on with the writer ahead of time.

A full list of the relevant documents to be considered by the writer should be included. In an asylum claim for example this is likely to include interview records, witness statements, decision letters, tribunal determinations, full and up to date medical records (more on this below) and any other expert reports such as country expert reports that have been produced. It should be made clear what has already been submitted in the case.

The above is not an exhaustive list and it will of course depend on the stage of the case. It is best to think about what documents you would like to see to get a good overview of what has happened in a case so far and provide those. It is not necessary to send every piece of correspondence that has been sent to the Home Office unless it contains key information about the case.

The legal history of the claim should be set out as well as brief details on the background and history of trauma. It is important to highlight any inconsistencies or credibility issues that may have come up in the case so far, so that the report writer has this information ahead of their assessment.

Importantly any specific instructions that need to be addressed must be clearly detailed and must be specific to the individual. Simply copying and pasting from other instructions should be avoided, with the caveat that some questions will be common for most reports. An example of what a standard medico-legal report will include is as follows:

• Background & History of trauma
• Physical injuries (if relevant)
• Mental health overview
• Clinical Plausibility
• Treatment, recommendations, and prognosis
• Ability to give evidence/be interviewed and the impact of this
• Risk in detention (if relevant)
• Suicide risk (if relevant)
• Risk & vulnerability on return (to country of origin or other third country where relevant)

We look at some of these in more detail below.

Clinical plausibility

Consideration of clinical plausibility requires the writer to address the possibility of feigning, exaggeration, and/or false allegations of torture (see paragraph 348 of the Istanbul Protocol: Manual on the effective investigation and documentation of torture and other cruel, inhuman or degrading treatment or punishment).

Clinical plausibility is not the same as credibility. It is well established that it is not the role of the medical expert to make an overall assessment of credibility (see Istanbul Protocol paragraph 389).

Ability to give evidence

The decision on whether or not to call a witness to give oral evidence rests with the party who may call them to do so and this is subject to the case management powers of the Tribunal. A medical expert does not make a decision as to whether or not a witness should be called to give evidence.

However they can (and in some cases should) point out the potential consequences of calling a witness to give evidence. For example, if this would create an inhumane or unmanageable risk of suicide or a risk of re-traumatisation.

Despite common misconceptions a medical expert cannot certify that a witness is ‘fit’ to give evidence in any immigration and asylum appeal. There are no clinical criteria by which to make such a finding.

The importance of providing up to date medical records

The case of HA (expert evidence; mental health) Sri Lanka [2022] UKUT 00111 (IAC), discussed in more detail here, stressed the importance of ensuring that the report writer has considered and engaged adequately with the GP and other relevant medical records. It has long been understood that GP records are a key document to provide, however this case made clear that these need to be as up to date as possible and need to be actively engaged with by the report writer. It is recommended that the records cover the three months prior to the assessment where possible. 

If there are any known errors or inconsistencies in the medical records or documents, it would be prudent to raise these in your letter of instruction. There are a number of reasons why this may be the case that can then be subsequently addressed in the report, for example that a person did not feel comfortable disclosing their trauma history to their GP or the records are simply not accurate.

The report writer is of course required to read and actively engage with the medical records but if you have concerns that this has not been done then this should be raised when seeking clarification and amendments. This is particularly important where the records and the report ‘differs’. It is in the best interests of the case and the report writer that this is done to prevent criticism.

If the records do not include matters which are considered in the report then a discussion in the report as to why this may be will be necessary. This may require a degree of speculation but you could expect the report writer to ask and outline in the report the client’s response to why they had disclosed it to the report writer and not their GP.

The importance of this was made starkly apparent in a recent unreported judgment (CE (Cameroon) PA/01112/2020)) where a clinician was strongly criticised for the fact that they “uncritically accepted information provided by the appellant, even though on its face such information was inconsistent with the GP records [an approach] which was not consistent with the guidance now provided in HA.”

Inconsistencies and issues surrounding disclosure

The documentation of psychological evidence of torture or ill-treatment requires report writers to be able to evaluate consistency and consider inconsistencies in the history. As a legal representative it can be tempting to feel that every inconsistency needs to be ironed out but with a sufficiently strong medico-legal report the reasons why a clear and consistent account can not be provided can be addressed.

It is important to keep in mind that there is often variability in the level of detail that an individual will recall with regard to the events of the trauma. This variability does not necessarily indicate that they are providing false information or are unreliable.

A strong medico-legal report will address possible explanations for any inconsistencies and often a report writer will ask for further clarification. For example you may expect to see a line such as ‘I note that in the screening interview it states X but Mr A told me, I asked Mr A about this and he said it was because X’. When this is not possible, the report writer should look for and detail other evidence that supports or refutes the account of events.

In a similar vein it is not unusual for a ‘new’ disclosure to arise during the assessment for the medico-legal report. This can arise for a magnitude of reasons, including but not limited to; poor mental health, shame, trust, cross cultural issues e.g., fear of honour-based violence, juju, cultural taboos around homosexuality. Again you can expect this to be addressed in a similar way to inconsistencies.

Prior to the assessment

Ensure the letter of instruction and bundle of documents are sent ahead of time to enable the writer sufficient time to consider them.

Always arrange an appointment with your client to carefully explain the purpose of the appointment and report, as well as what they can expect during the assessment. This should not be new information to your client as they will have had to consent to the report being requested in the first place, but it is best practice to reiterate this information to them again shortly before the assessment.

It is imperative they are made aware of the likely topics that are going to be covered during the assessment as this could be deeply traumatising for them otherwise. If you are concerned about the impact that the assessment may have on your client, it is often helpful to arrange a welfare check with them at an agreed time and date and if possible ensure they have someone who can offer support following the assessment.

Reviewing the draft report

The following may feel obvious but working in the fast-paced environment that most legal representatives find themselves in, sometimes the basics can slip.

On receipt of the draft report, it is helpful to do an initial review before going through it with the client. This can help to identify any glaring omissions or issues of concern as well as any areas where you are concerned the report writer might have gone outside of their remit. It can often be useful to do a comparison of the history alongside the core documents in the case to ensure there are no inconsistencies.

It is vital that the report is read through with the client and that you seek their instructions and comments, do not assume that the report writer will have done this. They usually do not. It would rarely, if ever, be appropriate to send the report to the client and ask them to comment as this can amplify their anxieties and there is an increased risk of retraumatisation.

It is always advisable to do this in person where possible and should be done in a sensitive and trauma-informed manner.  Allow plenty of time for this appointment and as with the assessment it may be sensible to arrange a check in afterwards,

Once you have clear instructions these should be sent to the report writer (or organisation where relevant) in a timely manner, so that the report is fresh in their mind. This may lead to a follow up assessment being required to address the comments.

It is important to be aware that the report writer will not always accept every suggestion and may have good reason for this. You are of course looking out for your clients’ best interests but the report writer also has to consider their own reputation so this should be a collaborative process and may take several iterations before a final version is agreed. Ultimately an independent report is going to be a stronger report.

Conclusion

In an increasingly hostile environment medico-legal evidence is likely to be more in demand than ever. Medico-legal evidence can often make a material difference in a case, so it is vital that carefully thought-through instructions are provided and all the necessary follow up is done to ensure it is as effective as possible and stands up to scrutiny.

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