What is a medico-legal report?

This article provides an overview of what a medico-legal report is, the different types of reports available and when they should be used.

A medico-legal report is frequently used to document the psychological and/or physical result of torture and other forms of ill-treatment which an individual has been subjected to. They are written by qualified clinical experts and are commissioned by legal representatives who provide detailed instructions on what the report should address along with relevant supporting documents.

We address the practicalities of how to prepare instructions for medico-legal reports and common pitfalls in a separate article.

The Istanbul Protocol

You may sometimes see comments on whether a medico-legal report is ‘IP compliant’ or not. IP stands for the Istanbul Protocol, and so it is helpful to delve into what that is. The Istanbul Protocol is a United Nations document. The full title is: “Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment” and the latest version can be found here. 

The Istanbul Protocol is a toolkit which provides guidance and sets standards for documenting torture and ill-treatment. It contains helpful information and guidance for every stage of the medico-legal process. It is mostly intended to be used by clinicians but it is helpful for legal representatives to be familiar with its contents when reviewing a report.

The protocol gives practical advice on how to interview survivors of torture and ill-treatment and what topics should be covered. It contains tips on what report writers should look out for during their examination of the person and what they might expect to find. Importantly, it contains guidance on how to document findings so a report writer who uses the guidance is more likely to write an effective report.

As the Istanbul Protocol is an internationally recognised standard and is specifically recognised in the UK for asylum cases, utilising and referring to it in reports is likely to give them more credibility. If a report does not specifically refer to the Istanbul Protocol though it does not always mean that it is an inadequate report. This is recognised in the Home Office guidance on medical evidence in asylum claims which states: “The Istanbul Protocol is not presented as a fixed protocol but rather as guidelines and principles on minimum standards”.

Types of medico-legal evidence

It is not enough to simply say a case needs a medico-legal report, some proper thought needs to be given to the type of report that will be most useful to a case. There are various different types of reports available, including:

A full medico-legal report: this involves a physical assessment of scars/physical injuries including, for example, musculo-skeletal damage, as well as scars, marks, and lesions. It also includes an assessment of psychological/emotional consequences of ill-treatment. This will be completed by a doctor, usually a GP. It will be necessary to instruct for this type of report if your client has lasting injuries from their experiences of torture or ill-treatment. Those injuries may include marks but importantly are not limited to them in terms of physical injuries which may be invisible.  

Psychiatric/psychological medico-legal report: this involves an assessment completed by a psychiatrist or a clinical psychologist to address whether a person has particularly complex psychiatric or psychological difficulties because of ill-treatment or for any other reason.

Practical point: Many people ask what the difference is between a psychiatric or psychological report. The answer is that provided the clinician has appropriate training in preparing these types of reports there is not much of a difference.

They are both able to provide a diagnosis in accordance with the relevant frameworks. However if a person has a particularly complex mental health presentation which requires, for example, consideration of a medical diagnosis and prescribed medication then it may be preferable to have a report from a psychiatrist, who is a medical doctor specialising in mental health.

If an assessment has to be undertaken as to whether a person has capacity, within the Mental Capacity Act 2015, this can be conducted by a psychiatrist or a clinical psychologist or another professional with experience in carrying out such assessments (including for example GPs or social workers). An assessment of this type is decision specific so someone who assesses capacity to give instructions should understand the context behind the request.

The Mental Capacity Act Code of Practice, which can be found here, also makes clear that the more important the decision the more formal the assessment should be. It is important that whoever writes the capacity assessment ensures that it actually addresses the test for capacity under the Mental Capacity Act.

In reality it is the experts’ relevant qualifications and experience of doing this type of work that is the most important. It is always best to request the credentials of the expert before formally instructing, including their specific experience and training. If you are instructing an expert via a specific organisation (such as the Helen Bamber Foundation, Freedom from Torture, Forrest Medico-Legal Services, Expert in Mind) then they are likely to be able to give guidance on the best type of expert for the report.

Professional report: this will be prepared by the treating clinician who is either providing or has provided therapeutic support. These are not considered to be entirely independent but they can be useful to give greater depth of information due to the existing relationship between the person and the clinician. It will be necessary to agree with the instructed clinician their particular understanding of their duty to the court to be objective and impartial, notwithstanding the ‘therapeutic relationship’ and to set this out in the report.  

It may be necessary for further reports to be provided for a range of reasons after the original has been finalised and submitted. Examples of these are as follows:

Addendum report: this will be an updated report which is usually prepared by the original writer. This may be necessary when there has been a delay in decision making and an update is required or where there has been a decision and specific matters need to be addressed or responded to.

Supplementary report: this will be an additional report that is prepared by another specialist. This may be necessary if the original writer is not available or or if matters are raised which fall outside the field of expertise of the original report writer. For example, a psychiatrist has been instructed but there are also physical injuries that require documentation, or a ‘full’ medico-legal report has been prepared but mental health issues revealed fall outside the field of expertise of the original writer.

Where there has been criticism of a report, it is important to inform the original writer where possible. It may be that the original report writer is able to respond to that criticism. In this situation, it could also be useful to obtain a supplementary report from another expert.

Conclusion

Medico-legal reports have long been used as independent evidence in immigration and asylum cases but given recent changes to the system it is likely that the use of them will vastly increase and they may be used at much earlier stages. For example for those people whose asylum claims have not been admitted to the asylum system in the UK or who are being placed into unsuitable asylum accommodation shortly after arriving here.

It is therefore more important than ever that careful consideration is given to the type of report that will be most effective in a persons’ case. This includes exploring from the outset whether they have any physical signs that could be documented as well as psychological/emotional consequences of ill-treatment.