By and -

Snapshot

  • Courts hearing mental capacity cases give weight to contemporaneous medical evidence and treating doctor opinion.
  • The recent case of Curcuruto gives clear direction as to how a Court will use this evidence.
  • Guidance for adducing treating doctor evidence is provided, including suggestions for Treating Doctor Affidavits and Report headings.

In cases where mental capacity, including testamentary capacity, is in question, evidence as to the underlying medical and/or mental condition of the subject person (‘the person’) is critical for a Court to make its determination. Such evidence is often adduced by way of retrospective expert medical opinion, where ‘medical’ experts often include neuropsychologists, neurologists, geriatricians and psychiatrists.

Retrospective expert evidence

The term ‘retrospective’ is typically used where the expert has not assessed or observed the person at the time the legal transaction in question was executed (‘the material time’). A retrospective expert will review contemporaneous documents, and provide an opinion based upon the documents and their specialist knowledge (Evidence Act 1995, s 79). In order to adduce retrospective expert evidence in proceedings, practitioners must seek directions from the Court, often by way of Notice of Motion (Uniform Civil Procedure Rules (‘UCPR’), Part 31), which may increase costs and cause delay. An additional disincentive to reliance on retrospective expert evidence has come from the Court itself, as highlighted by comments of Hallen J in Starr v Miller [2021] NSWSC 426: ‘The evidence of each is important because it is generally recognised that the evidence of treating practitioners is of more assistance to the Court than [the retrospective evaluation] … of medical experts who lack the opportunity to observe, and assess, the deceased first-hand’ (at [487]).

These recent comments echo long standing concerns raised by judges at first instance and the Court of Appeal in relation to retrospective expert opinion (Croft v Sanders [2019] NSWCA 303 (‘Croft’)).

The process for adducing the evidence of a retrospective expert is well charted, and guidance as to the form and substance of a retrospective expert report is clearly available (see UPCR Pt 31, Sch 7 Expert witness Code of Conduct (‘the Code’)). However, there is less certainty for practitioners as to the appropriate form of treating doctor affidavits and reports, including any opinion evidence, or the use the Court may make of that evidence.

With this uncertainty as background, the recent decision of Hallen J in Chant v Curcuruto [2021] NSWSC 751 (‘Curcuruto’) has provided a welcome road map for the use of treating doctor evidence.

Curcuruto

Curcuruto was a contested probate case, where the validity of the wills of a husband and wife was questioned on the basis of a lack of testamentary capacity (and lack of knowledge and approval). In order to make its determination, the Court considered: contemporaneous medical evidence; retrospective opinion of a treating doctor (geriatrician); and evidence of lay witnesses, including the solicitor who prepared the wills.

In relation to the evidence of the treating doctor, the Court had regard to: the doctor’s qualifications and experience (at [64]-[65]); contemporaneous medical records, including handwritten notes, letters and reports; diagnoses of cognitive impairment and dementia (at [177]-[221], [229]-[250]).

Whilst the treating doctor did not assess testamentary capacity at the material time, based on his observations and ‘professional experience’, he was permitted to provide a retrospective opinion as to whether the husband and wife were likely to have had capacity in relation to: knowing what a will is, appreciating the nature of the estate, and identifying, evaluating, and discriminating between the claims of potential beneficiaries (at [222]-[228], [251]-[256]).

The Court noted the treating doctor’s opinion that it was unlikely the husband and wife ‘would have had testamentary capacity (as established in Banks v Goodfellow) to make a valid Will’ (at [228], [253]); of this the Court noted: ‘Whilst it is true that he expressed his opinion as to testamentary capacity after the death of each of them (because he did not specifically assess that capacity during his, and her, lifetime, respectively), he based his opinions on the assessments of each made during [the husband and wife’s] lifetime … (at [257]).’

Following a ‘holistic’ assessment of the whole of the evidence, the Court was not satisfied the husband and wife had testamentary capacity when they made the wills.

Guidance for treating doctor reports

Curcuruto provided a detailed account, both procedural and substantive, of the use a court may make of contemporaneous medical evidence and retrospective treating doctor opinion. Such an approach can be identified in earlier decisions of the Court, including the recent decision in Re Estate Charell,deceased [2021] NSWSC 591 (‘Charell’) per Lindsay J.

In Curcuruto, Charell, and Croft, the courts have provided practitioners with clear direction as to the preferred form and substance of treating doctor evidence and opinion. Such direction may be applied by practitioners in preparation of treating doctor affidavits (see Appendix A below, for template), as well as in letters of instruction, where it may be appropriate to provide treating doctors with guidance as to report structure (see Appendix B over page, for template), so as to best assist the Court and ensure admissibility and compliance with the Code (Drivas v Jakopovic [2019] NSWCA 218).

Of course, any letter of instruction will also include the questions to be addressed in relation to capacity, which will vary in relation to the capacity issue in question (for testamentary capacity questions, see Bennett H (2020) ‘M’Naghten’s Trial [1843], Banks v Goodfellow [1870], and the neurobiology of intellectual and moral functions: Progenitors of the common law principles for determining testamentary capacity today’, Australian Bar Review, 48, 113-160).

To the extent that practitioners take up the opportunity to adduce treating doctor evidence, further clarity is required regarding the circumstances in which practitioners will be required to seek a UCPR rule 31 direction in order to rely on retrospective treating doctor opinion evidence.

Editor’s note: A variety of additional resources and templates are also available on the Elder Law page of The Law Society of NSW website


Dr Hayley Bennett is a barrister in New Chambers and a former expert ‘treating doctor’ neuropsychologist. Alisa Green is an Associate at Glass Goodwin Solicitors & a former psychologist.

Appendix A: Treating Doctor Affidavit

I [#say on oath #affirm]:

  1. I believe that the contents of this affidavit are true.
  2. I am a [Professional title].
  3. My qualifications are as follows: [Professional qualifications, training and study].
  4. My professional experience is a follows: [Professional experience, including current and previous employment].
  5. Annexed and marked ‘A’ is a copy of my Curriculum Vitae.

Care and treatment of [person]

  1. During [date] and [date] I was the treating [Professional title] for [person]. [Set out the context and circumstances of the care and treatment].
  2. I examined and reviewed [person] on [number] of occasions on the following dates: [dates].
  3. Annexed and marked ‘B’ are copies of my handwritten notes from each consultation.
  4. Annexed and marked ‘C’ are copies of a transcription of my handwritten notes from each consultation.
  5. Annexed and marked ‘D’ are copies of the reports I wrote in relation to each consultation.
  6. In the course of the consultations, I arranged for a number of tests and investigations to be carried out. Annexed and marked ‘E’ are copies of the results of those tests and investigations [Include copies of relevant tests, such as CT or MRI brain scan reports].

Court proceedings

  1. I have been informed that [person] died on [date] and there is a dispute as to [person’s] mental capacity to [make a Will] on [date].
  2. I have been asked to provide a report as to [person’s] medical and/or mental condition whilst [person] was under my care, and to provide an opinion as to whether any medical and/or mental condition, if present, would have affected [person’s] mental capacity to [make a Will] on [date]. Annexed and marked ‘F’ is the letter of instruction I received from [Law Firm] dated [date].
  3. I have prepared a report dated [date] setting out my opinion in relation to [person’s] medical and/or mental condition on [dates of treatment], and my opinion as to the likely impact of [person’s] medical and/or mental condition on their capacity to [make a Will] on [date]. In formulating my opinion and providing this report, I have relied upon my notes and other records contained in my medical file for [person], which was produced to the Supreme Court of NSW in response to a Subpoena, as well as my independent recall of my assessment and observations of [person], and my professional training and experience.
  4. Annexed and marked ‘G’ is a true copy of my report dated [date].

 

Appendix B: Treating Doctor Report headings

[Name and address]

A. Introduction
[Context of provision of report]


B. Letter of instruction
[Issues (or questions) asked to address]

C. Code of Conduct
[Acknowledgement has read the Code and agrees to be bound by it]

D. Documentation
[Documents provided]

E. Expert witness qualifications and experience
[Qualifications and experience, including particulars that are relevant to preparation of this report]

F. Brief Summary of Report
[Where report lengthy or complex, brief summary of report]

G. Summary and opinion of medical and mental condition
[Set out the facts and assumptions on which opinion is based, together with reasoning]
[Cite any literature or other material relied upon; refer to any examinations, tests or other investigations relied on, identifying the person who conducted them, that person’s qualifications; and the extent to which any opinion expressed involved the acceptance of another person’s opinion, the identification of that other person and their opinion]

  1. Personal, social and family background
  2. Medical status
  3. Functional status
    [activities of daily living and instrumental activities of daily living]
  4. Cognitive status
    [General cognitive status (eg, MMSE) and specific neurocognitive domains (eg, complex attention and executive function) as in DSM-5]
  5. Diagnosis
    [Where appropriate, cite diagnostic classification criteria reference, such as DSM-5]

H. Opinion of Mental Capacity
[Set out the mental capacity questions from letter of instruction, and address each, setting out the facts and assumptions on which opinion is based, together with reasoning]

I. Declaration
[Declaration all the enquiries have been made that are desirable and appropriate (save for matters identified explicitly in the report), and that no matters of significance have, to their knowledge been withheld from the Court; any qualification of an opinion expressed without which the report is or may be incomplete or inaccurate; whether any opinion expressed is not concluded opinion for any other reason]