PI Brief Update

When Experts Go Too Far! - Dr Mark Burgin

24/10/25. Dr Mark Burgin explains experts who give opinions on what they think is inside the person’s head will continue to face legal criticism.

Can a GP expert give opinions on whether a person will be harmed by prison, being made homeless or return to their own country? This is a common question in Tribunal, Civil and Criminal court cases and it has been suggested that only psychiatrists can provide the answer. This is the wrong question and the experts should invite the solicitors to provide clarified instructions.

It is obvious that almost everyone would suffer some harm from these situations. The expert who states that their mental health is likely to be worsened has stepped outside of their expertise. Whilst this statement is trite, the courts will read this opinion as the expert indicating something more significant. The expert’s failure to clarify this opinion can lead to accusations of bias and the GMC GMP 2024 asserts against such omissions.

The material issue is whether the person has a pre-existing susceptibility to harm based upon a medical examination, review of the records and any correlative interview. The expert can offer opinions based upon this evidence but only within their areas of expertise. Different experts have different areas of expertise so e.g. a generalist will be able to consider the physical impacts as well as psychological. 

Horses for courses

Psychiatrists/psychologists have expertise in psychiatric illness and should indicate the severity of any illnesses. They should detail the natural history of that illness and any treatment options. This would include evidence of response to previous stresses. There may be uncertainties and they should indicate the limits of the evidence. They should not try to decide the facts or usurp the court’s decision on how unpleasant the experience would be.

GPs who have additional training in the biopsychosocial model have expertise in reviewing GP records which can be difficult to understand for a non-GP. They should quote the relevant sections to provide evidence of the biomedical diagnoses. The records and the assessment and Istanbul Protocol would also provide psychosocial details which can help the court determine how the person has previously responded to stress.

Disability analysts should complete a comprehensive assessment including physical, psychological and hidden functional restrictions. This provides a complementary approach by giving opinions on disability which is not normally part of a psychiatric expert’s report. Where the person does not have a serious diagnosis such as psychosis their capacity to cope with the change may be more relevant.

Significant or substantial?

Most people will suffer significant distress if they are forced to do something they do not want to do. A few people will suffer substantial distress and fewer still will develop acute mental health breakdown requiring mental health admission. All experts must be able to clearly distinguish between these outcomes in their reports. A report that does not provide a logical report based on the evidence is not useful to the court.

The expert must also provide a range of opinion as there is no robust scoring system that can predict the person’s response. Failure to consider the range of opinion indicates both bias and a lack of independence. It also unnecessarily increases the costs as the solicitors then need to obtain a further report to obtain another opinion. The court then must determine for themselves the range which is unsatisfactory.

If reasonable adjustments are likely to be required then a disability analyst would be the best option. Although both GPs and psychiatrists should attempt to answer this question, they should indicate that they are not trained in disability. The court will be assisted by any attempts to suggest how the distress could be managed even if this is outside of their expertise.

Conclusions.

The question of whether a person will suffer because of prison, eviction and deportation is not a matter of expertise for the medical expert. Lawyers should give instructions within the medical expert area of expertise and avoid encouraging the experts to speculate. My recent cases include several unexpected diagnoses such as cancer causing memory loss and missed angina requiring heart surgery.

Model instructions should be used to avoid both stepping outside of expertise and missing important issues.

• What are the impairments, functional restrictions and effects on the activities of daily living that could impact imprisonment, eviction or deportation?
• What evidence is available to indicate their previous responses to change and is further evidence likely to be available?
• What reasonable adjustments and treatments could be made to improve their current functional restrictions and ability to manage change?

Having an expert who understands the legal issues in these cases and the limits to their expertise can help prevent criticism. Lawyers can help experts getting into trouble by ensuring that they comply with the procedure rules and do not forget that other experts will not agree with them. For those who are often asked to consider capability and reasonable adjustments I would recommend reading Disability Analysis: A Practical Guide

Doctor Mark Burgin, BM BCh (oxon) MRCGP is a Disability Analyst and is on the General Practitioner Specialist Register.

Dr. Burgin can be contacted on This email address is being protected from spambots. You need JavaScript enabled to view it. and 0845 331 3304 websites drmarkburgin.co.uk and gecko-alligator-babx.squarespace.com

BRO, R (On the Application Of) v Secretary of State for the Home Department (Rev3) [2025] EWHC 2231 (Admin)

This is part of a series of articles by Dr. Mark Burgin. The opinions expressed in this article are the author's own, not those of Law Brief Publishing Ltd, and are not necessarily commensurate with general legal or medico-legal expert consensus of opinion and/or literature. Any medical content is not exhaustive but at a level for the non-medical reader to understand.

Image ©iStockphoto.com/BrianAJackson