Court of Protection judge outlines guidance on instruction of experts

The judgment in Bristol City Council v CC & Ors [2026] EWCOP 19 (T3) (30 April 2026) dealt with final declarations relating to capacity regarding ‘CC’, a 23-year-old man, under the Mental Capacity Act 2005.

At the hearing on 17 March 2026, Theis J heard oral evidence from a clinical psychologist, the expert instructed jointly by the local authority, the Trust, the ICB, Sirona Care and Health CIC, and the Official Solicitor, with the Official Solicitor acting as the lead instructing party.

At the invitation of the court, the parties liaised and produced an agreed note on the instruction of experts in the Court of Protection.

Thesis J said: “This issue arose due to my concerns in this case as to (i) the length of the letter of instruction sent to the expert in this case (27 pages, 12 of which were under the heading 'Legal Framework'), and (ii) the incoherent management of the way documents were sent to the expert prior to this hearing by the local authority (he was sent large pdf bundles with no agreed guide as to what he should read/focus on).”

Outlining guidance on the instruction of experts, the judge first noted that the procedural rules on the instruction of experts in the Court of Protection are contained in rule 15 of the Court of Protection Rules 2017 ('COPR 2017'), as supplemented by Practice Direction 15A.

She said: “The test is 'necessary' (rule 15.3(1) COPR 2017) and permission may only be given if it is necessary to assist the court to resolve the issues in the proceedings and could not otherwise be provided by a rule 1.2 representative or in a report pursuant to s49 MCA 2005 (rule 15.3(2) COPR 2017).”

When making an application for the instruction of an expert on form COP9, Theis J noted that the application must include a draft letter of instruction to the expert.

She said: “The expectation is that the draft letter of instruction should be approved by the court or, if not (due to urgency or some other reason), clear directions in the order for the letter to be finalised with the questions for the expert being approved or overseen by the court.”

She noted that the letter of instruction must be “focussed” and adapted to the facts of the particular case, adding that “lengthy and unwieldy” recitations of the background facts and procedural history are to be avoided, as well as detailed descriptions of previous case law.

Theis J outlined the key components of a letter of instruction to an expert as follows:

1. A brief neutral statement of the essential facts of the case.
2. A list of materials with which they are being provided for the purpose of the assessment the expert is undertaking.
3. A core legal framework setting out the central principles of the MCA 2005, a summary of the relevant sections of the MCA 2005 should suffice and, if appropriate, to reflect, for example, the order in which a capacity assessment should be approached, as set out by the Supreme Court in A Local authority v JB [2021] UKSC 52. Any such references should be kept succinct and must be relevant.
4. If assessing capacity, identification of the relevant decisions to be assessed, with the relevant information for each decision as agreed between the parties.
5. Confirmation as to whether the proceedings are in public or private and details of any Transparency Order in place.
6. Details of any person(s) the parties consider the expert should or may meet with, and remind the expert of the importance of there not being any unrecorded/informal discussions.
7. The letter should clearly identify timescales for the report, dates of hearings/oral evidence, confirmation of who the report will be disclosed to, and a reminder about the ability to pose questions of clarification (rule 15.7. COPR 2017). It should also contain information about the expert's fees.

She added that questions to the expert after the filing of their report should only be done in accordance with rule 15.7(2) COPR 2017 or by order of the court (rule15.7(3) COPR 2017).

Meanwhile, in accordance with rule 15.7(2)( c) COPR 2017, any such questions must be for the purposes of clarification only.

In addition to ensuring experts have all the relevant documents at the point of their instruction, Theis J noted that parties should keep under “active review” what further evidence or documents should be sent to the expert, with a suitable covering message identifying the relevant documents.

“If agreement is not possible, a COP9 application will need to be issued setting out the issue and the parties' competing positions with a draft order attached. This will enable the court, if appropriate, to determine the issue on the papers”, she added.

Finally, Theis J said if an expert is going to give oral evidence at a hearing, they should be provided with the following in advance of the hearing by the lead instructing party:

• An updated court bundle at the same time as the bundle is lodged with the court.
• A list of updating documents that have been filed since their instruction, which should highlight the specific documents that the parties consider that they should review in advance of the expert giving oral evidence.
• Any further 'loose leaf' documents filed immediately prior to the hearing, that the parties will likely refer to in the course of their questioning of the expert.

Lottie Winson