by Mark Henderson & Alison Pickup
Corroborating past ill-treatment
Characteristics going to present risk
Reports on mental condition
Challenging expulsion on medical grounds
Instructing a medical expert
Medical experts instructed by the home office
The role of the medical expert
Format and presentation of the report
26.1 Much of the guidance on the role of an expert and the presentation of his evidence is equally applicable to the reports discussed in this chapter. The requirements of section 10 of the Practice Directions apply equally to medical and country experts. But this chapter deals with issues specific to expert medical evidence. The term 'medical report' is used as a label for all expert evidence on physical or mental condition, whether or not the expert is a medical doctor (or, say, a psychologist). For convenience, two other types of expert evidence are discussed in this chapter. The first is expert evidence on medical facilities in the country of origin as this is usually submitted in conjunction with medical reports. The second is evidence from independent social workers as to the effects upon families of expulsion as this is often submitted in conjunction with psychological reports.
• corroborate past ill-treatment;
• establish scarring, injuries or other conditions which will exacerbate risk from the authorities or non-state actors;
• explain an appellant's difficulties in giving evidence or recounting events;
• demonstrate the effect of expulsion upon a person's physical or mental condition or that of a member of her family.
26.3 The courts have emphasised the care with which relevant medical evidence should be addressed - see the discussion from para 26.44 below.
26.4 A physical examination will normally be appropriate if your client reports significant past ill-treatment and credibility is in issue. The only basis for not obtaining a physical examination would be where there is no realistic possibility that the treatment reported by your client would have left any evidence.
26.5 Do not assume that because your client has no visible marks, there is no point in a physical report. A medical expert may detect after-effects of torture which are not apparent to a lay person. (Equally, do not make assumptions about the marks you can see. Ask your client about them. It may turn out that they have an innocent explanation.)
26.6 Some have an unrealistic view of what medical evidence can do. It is virtually never the case that medical evidence can prove conclusively whether or not someone was tortured. Sometimes, judges and HOPOs will suggest that the absence of medical evidence indicates that the appellant's account of torture is false. In Junaid v SSHD (01/TH/02540), the Tribunal commented as follows:
There is a further concern in that [the adjudicator] relied upon the absence of any medical report in relation to physical evidence of torture. The appellant's account was that the wounds had healed and there was effectively nothing substantial to show for what had happened to him. In our judgement, the way the Adjudicator approached that was again wrong. She should have considered first whether the evidence established that there would have been some sort of scarring and then and only then would it have been proper for her to have drawn the conclusion that the absence of scarring in some way militated against the account given by the appellant.
26.6A Similar concern was expressed by the Court of Appeal in Reka v SSHD  EWCA Civ 552 (para 35; 45) about relying on the absence of physical evidence of ill-treatment in the absence of medical evidence that such physical evidence should exist had the claimant suffered the ill-treatment she reported.
To the extent that physical evidence of torture exists, it provides important confirmatory evidence that a person was tortured. However, the absence of such physical evidence must not be construed to suggest that torture did not occur, since such acts of violence against persons frequently leave no marks or permanent scars.
26.8 Despite this, the absence of medical evidence may raise suspicion in the judge's mind that the reason there is no report before him is that the report which was obtained was negative. That risk is not obviated if the judge does not refer to his suspicion in the determination. Where an expert indicates that the absence of positive medical evidence is not an indicator that the appellant's case is false, it may be worth serving the report.
26.9 Expert evidence on mental conditions, e.g. PTSD, may also corroborate past ill-treatment. In many countries, state agents are increasingly sophisticated in inflicting torture by means that do not leave lasting physical evidence. This has made psychiatric reports more significant in some cases. For example, in Amnesty International's report 'Turkey: Torture and Impunity' (October 2001), it stated that:
Psychiatric reports have gained importance in the documentation of torture, since the security forces increasingly use psychological and other forms of torture which do not leave visible wounds, making torture allegations more difficult to verify.
26.10 Corroborating credibility may not be the only relevance of visible marks and scarring. Country evidence may indicate that visible scarring which is consistent with past torture or past combat may provoke the adverse interest of local security forces. Such scarring will be relevant regardless of whether it in fact had an innocent explanation. A medical report demonstrating scarring suggestive of past torture or combat may therefore be material, even where the scarring was actually caused in some other way. A report from a country expert may also be required in such cases as the real question is not simply what the scarring indicates to a medical practitioner but whether there is a real risk that the scarring may provoke the suspicions of the security forces. The Tribunal has also indicated that it is useful to make photographs of the scarring available where this issue arises. (Medical photography is available from the Photography & Illustration Department, University College London, tel: 020 7380 9079.)
26.11 Psychiatric and psychological reports may also be material to present risk. A person who is mentally ill or disordered may be less capable of withstanding intense interrogation without inadvertently incriminating herself. It may be claimed by the HOPO that your client can avoid ill-treatment by lying or concealing information when interrogated upon arrival. Such a proposition is obviously unattractive even in respect of a healthy appellant (and, following RT (Zimbabwe) v SSHD  UKSC 38, legally erroneous), but expert evidence may indicate that the appellant is in any event unlikely to be able to carry off such a deception - see e.g. AN & SS (Tamils - Colombo - risk?) Sri Lanka CG  UKAIT 00063.
26.12 The Istanbul Protocol states that:
A psychological evaluation and appraisal of the alleged torture victim is always necessary and may be part of the physical examination, or where there are no physical signs, may be performed by itself. (para 103)
Even where your client does not report significant physical ill-treatment, be sensitive to the possibility that your client may be traumatised, disturbed or have other psychiatric or psychological difficulties, whether flowing from ill-treatment that she has not disclosed or some other reason. Listen to your client when you take instructions. Ask her how she is feeling, but do not unquestioningly accept her answer. Sometimes a client will have blanked out particular incidents. She may give what seem to be completely different accounts of an incident each time you speak to her. She may appear disturbed, unable to concentrate, unusually slow, unwilling to answer the questions you ask or incoherent. Such an assessment obviously requires an experienced and competent interpreter so that you get the best possible idea of how your client is expressing herself. As discussed in chapter 11, some interpreters consider their role not only to interpret but to render the language coherent and logical. If you do not recognise and prevent this, it means that you will probably miss problem signs.
26.13 The Home Office regularly alleges dishonesty on the ground that any genuine refugee should be able to give a consistent account of her ill-treatment over time. There is a large body of expert learning to the contrary, see e.g.:
• Discrepancies in autobiographical memories - implications for the assessment of asylum seekers: repeated interviews study, Jane Herlihy, Peter Scragg, Stuart Turner (British Medical Journal, Vol 324)
• Errors of Recall and Credibility: Can Omissions and Discrepancies in Successive Statements Reasonably be Said to Undermine Credibility of Testimony (Medico-Legal Journal, Dr Juliet Cohen (2001) Vol. 69 Part 1, 25-34
• Memory, Disclosure and Credibility: Implications for the Forensic Assessment of Asylum Seekers, Dr Stuart Turner and Dr Jane Herlihy, December 2004 (Available from Freedom from Torture's website)
26.14 An examination by a psychiatrist or psychologist may demonstrate that it is particularly inappropriate to expect consistency in view of your client's condition. It may go to explain past discrepancies relied upon by the Home Office and/or to explain your decision not to call oral evidence from your client. The Medical Foundation's Guidelines for the Examination of Survivors of Torture (2nd Edition) advises that in the course of taking a medical history:
Discrepancies of fact are noted and explanations sought from the subject, allowing time for thought and ordering of the memory. Minor variations often occur in the telling even by normal subjects and are more likely by confused or forgetful subjects; they do not necessarily detract from and indeed may add to credibility.
Any discrepancies in the history should be discussed with the subject who should be given time to reflect and recall the correct sequence of events. It is worth stressing that precise recall of dates and places is impossible where multiple episodes of torture have occurred or where the subject has suffered severe emotionally-mediated memory disturbance. (p. 23)
26.14A The Joint Presidential Guidance Note on Child, Vulnerable Adult and Sensitive Witnesses (No. 2 of 2010) reminds judges that
...Some forms of disability cause or result in impaired memory;
The order and manner in which evidence is given may be affected by mental, psychological or emotional trauma or disability;
Comprehension of questioning may have been impaired. (10.3 Assessing evidence)
You may want to ask an expert whether any of these apply to your client.
26.15 Even when the examination is conducted by an expert, encouraging a trauma victim to recall and relive their experiences is dangerous. The Istanbul Protocol states that:
Despite all precautions, physical and psychological examinations by their very nature may re-traumatize the patient by provoking or exacerbating symptoms of post-traumatic stress by eliciting painful effects and memories... A subjective assessment has to be made by the evaluator about the extent to which pressing for details is necessary for the effectiveness of the report in court, especially if the claimant demonstrates obvious signs of distress in the interview. (para 148)
26.16 Given the risks involved even in taking a history in a supportive environment, the expert may well advise that cross-examination in the context of an adversarial court hearing will pose an unacceptable risk. In those circumstances, it will usually be inappropriate to call your client to give oral evidence at the hearing (see further chapter 30).
26.17 A fear of stigma may make your client anxious to conceal past ill-treatment from relatives and her community, particularly sexual ill-treatment. You must always take instructions in the absence of friends and relatives (see chapter 11). Your client may be worried that referral for psychiatric examination will provoke unwelcome questions from relatives. It can help to tell close relatives who are also involved in the case that your client's examination is a routine measure. If confidentiality as regards relatives is an issue, be sure that any report is not sent to your client by post without express authorisation.
26.18 Unfortunately, many representatives consider that their job is done once they have obtained the necessary forensic evidence and give little consideration to the therapeutic requirements disclosed by the report. Left to her own devices, the prospects of your client accessing therapeutic care are little better than the prospects that she would have obtained forensic evidence on her own. A large proportion of UK citizens who suffer mental illness or disorder fail to access appropriate treatment. The obstacles are magnified for an asylum seeker.
26.19 The expert report should contain an indication of any appropriate treatment. However, the overriding duty of a medical expert, like any other expert, is to provide independent assistance to the Court. Although the Medical Foundation (now known as Freedom from Torture) and the Helen Bamber Foundation are a special case, an expert witness will not normally view arranging treatment for your client as consistent with his role in the litigation. You should ensure that any recommendations are taken forward in conjunction with your client's GP. Referral to the Medical Foundation or the Helen Bamber Foundation (if they did not produce the original report) may be considered, although there may be a long waiting list for treatment.
26.20 Facilitating treatment is obviously in the interests of your client. It will also avoid the HOPO attempting to discredit the forensic evidence on the ground that one would have expected her to be receiving treatment. Although he will not stand in the same shoes as an independent expert, a doctor who is responsible for your client's treatment may also be able to add valuable evidence for the appeal.
• The appellant or her dependants are unable to access the treatment they need in the country of origin (either because it is not available generally or will not be available to them).
• The need to access treatment precludes moving to a part of the country which would otherwise be safe.
• The appellant's health prevents her working and so deprives her and any dependants of the means of survival.
• Some conditions (e.g. HIV/AIDS) provoke discrimination and stigmatisation.
• The act of forcible expulsion will trigger a relapse of a serious mental illness/disorder.
• Returning the appellant to the site of previous trauma will exacerbate her condition.
• Treatment which would not cross the requisite severity threshold for a healthy person will cross that threshold where the person is suffering from serious physical or mental conditions.
26.24 The Home Office sometimes seeks to discredit a medical expert's prognosis on the basis that it assumes matters about the country of origin that he is not qualified to know. It is important, therefore, that your medical expert sets out in his report the factual premise upon which he is commenting and indicates from where it is derived. If your medical expert does in fact have knowledge of country conditions (most usually, the availability of health care), then he should explain that knowledge in the same way as a country expert. If not, he should explain what information he has been given. This may be country evidence, including expert evidence, or simply your instructions. But if the latter, you will obviously have to support the statements made in the instructions by evidence.
26.24A In KV (scarring - medical evidence) Sri Lanka  UKUT 00230 (IAC), the Upper Tribunal agreed that it was legitimate for medical experts to take account of country of origin information when preparing their reports but emphasised three caveats:
306. The first is that unless the COI has some specific relevance to the clinical assessment of the cause of torture (e.g. it deals with the most common methods of torture used in a particular country of origin) doctors should not go searching for such materials themselves – and indeed doctors are not and should not purport to be country experts.
307. Linked to the first, a second caveat is that even when they do draw on COI materials, doctors should make clear that they are not in a position to say what the overall state of the COI is, only to say what they have been made aware of: once again, they are not country experts who can be expected to have a comprehensive picture of COI.
308. A third caveat is that in the context of a medical report the doctor's task is to assist the asylum decision-maker by bringing to bear his or her medical expertise. He or she is not conducting a free-ranging assessment of the credibility of the claimant's story. ...
26.25 It will be apparent from the scenarios listed above that a wide range of country evidence may be required in a medical case. Particularly where health care provision in the country of origin is in issue, it is often useful for your medical expert to liaise with your country expert. The process might start with a preliminary note from the medical expert as to what treatment is required. The country expert will then produce a report upon the extent to which such treatment will be available. On the basis of that report, the medical expert will produce a prognosis.
26.26 The Home Office commonly argues that what is material is the theoretical availability of treatment. This is not necessarily determinative either way, but on one view of the law, showing that there is no treatment at all rather than no treatment accessible to your client may assist the case. It may therefore be useful for the expert to consider not only practical availability to the appellant but also whether the necessary treatment is available to anyone in the country of origin.
26.27 If the extent of health care in the country of origin is in dispute (for example, if the refusal letter or Home Office country report claimed that some health care will be available), you may wish your expert to provide an alternative prognosis on the basis of the facts claimed by the Home Office. If the prognosis is sufficiently serious to raise human rights issues even on the Home Office's case, then alternative arguments should be advanced to allow for the possibility that the Tribunal prefers the Home Office's claims about the availability of treatment.
• your client's present condition;
• what, if any, treatment she is receiving;
• the prognosis with that treatment;
• the effects (if any) of the act of expulsion;
• the prognosis in the country of origin.
26.30 In article 8 cases involving families with children, and particularly where proportionality is in issue, it will often be necessary to obtain expert evidence from a child psychologist as to the consequences for the children of their own expulsion or that of a parent. In Mindoukna v SSHD (01/TH/02635), the IAT gave guidance on the type of issues that such a report could usefully cover:
The trouble is that we do not have any reliably verified information about what the state of affairs in the family actually is, nor any expert help in predicting its future. As we hope everyone will come to realize, decisions in these cases are at least as important for the welfare of the child involved (even if that cannot be regarded as paramount), as any others. Where, as in this case, they may depend on significant recent developments, or other complications, in our view a short welfare report is required, from the local authority in whose area the child is living. Adjudicators should be asked by solicitors in such cases to make a request for one (assuming it has to come from them) in good time before the hearing. What the report should contain in this case, and how it should be dealt with, we shall discuss below.
We should not want to be accused of telling experienced court welfare officers how to do their business; but, as welfare reports have not so far been usual in this field, we shall try to give some idea of what we should expect one to contain. Naturally there would be a personal interview with both the appellant and Cathy, together with a home visit so that Leon could be seen in his normal surroundings. Some confirmation that there is regular contact between Cathy's other children and their father would be desirable; but other than that there does not seem to be any special need to go into their situation. What would be particularly appreciated is some assessment of the probable long-term stability of the appellant's relationship with Cathy, and of the contribution he is making to caring for Leon.
26.31 Court welfare officers have now been replaced by 'children's guardians'. It is not possible to obtain a report from them in their official capacity unless there are ongoing proceedings in the family courts. In RS (immigration and family court proceedings) India  UKUT 00218 (IAC), the Tribunal observed that while it was bound to treat the best interests of the child as a primary consideration following the implementation of s. 55 of the Borders, Citizenship and Immigration Act 2009,
...the Tribunal does not have any means of assessing these matters for itself, in particular: there is no local authority or children's guardian, no access to the service provided by CAFCAS, and no independent means of ascertaining the wishes, concerns and interests of the child. (para 37)
26.31A However, a report from an independent social worker (many of whom also act as children's guardians) will perform the same role. Given that the best interests of any children are a primary consideration in any appeal, Baroness Hale's answer to the question "what is encompassed in the "best interests of the child"?" in ZH (Tanzania) v SSHD  UKSC 4 provides some useful guidance as to the issues which such reports should address:
As the United Nations High Commission for Refugees says, it broadly means the well-being of the child. Specifically, as Lord Bingham indicated in EB (Kosovo)  AC 1159 , it will involve asking whether it is reasonable to expect the child to live in another country. Relevant to this will be the level of the child's integration in this country and the length of absence from the other country; where and with whom the child is to live and the arrangements for looking after the child in the other country; and the strength of the child's relationships with parents or other family members which will be severed if the child has to move away. (para 29)
26.32 The Medical Foundation (now also known as Freedom from Torture) and the Helen Bamber Foundations are the best known sources of medical reports in asylum and human rights appeals. The Home Office's AI on Medico-legal reports from the Helen Bamber Foundation and the Medical Foundation Medico-Legal Report Service ('the AI on the Foundations') states that:
Both Foundations are accepted by the Home Office as having recognised expertise in the assessment of the physical, psychological, psychiatric and social effects of torture. Clinicians and other health care professionals from the Foundations are objective and unbiased. Reports prepared by the Foundations should be accepted as having been compiled by qualified, experienced and suitably trained clinicians and health care professionals.
26.33 Its Asylum Process Guidance on Medical Evidence states that it "recognises the particular expertise of the Medical Foundation (MF) in identifying and treating survivors of torture. For this reason, special arrangements have been made with the Medical Foundation in handling cases with Medical Foundation involvement.''
Its policy is that "When the caseworker is informed in writing by the applicant's legal representative that the case has been accepted for a pre-assessment appointment [by the Medical Foundation or the Helen Bamber Foundation], they should normally suspend the substantive decision if they are not minded to grant any leave" (AI on the Foundations). It instructs caseworkers that "Where an account of torture or serious harm is given during the interview, the caseworker should suggest that the applicant may wish to approach one of the Foundations for care and treatment." Where time is now required to obtain a report, it may well be worth pointing out if this instruction was not complied with.
Home Office policy is that:
If a report has been produced in support of an allegation of torture or serious harm and, having considered the findings, the caseworker is minded to reject the claim to have been tortured for the reasons ascribed by the applicant because there is significant evidence that outweighs the MLR evidence in support of credibility, the case must be discussed with a Senior Case worker. If it is decided to refuse the claim the Reasons for Refusal Letter (RFRL) must address the contents of the report and explain what weight has been given to the medical evidence and why this do not outweigh other grounds for not accepting the applicant's account of events. Caseworkers should not argue that no weight can be applied to the report. If the allegation of torture or serious harm has been rejected, the RFRL must state clearly the reasoning behind the rejection of the claim (AI on the Foundations)
26.34 The IAT has also described the Medical Foundation as a 'most prestigious and reliable' body which has 'over the years accumulated a large body of expertise' (Guney v SSHD (19159)). There have been significant delays in the past in producing reports but following a pilot in 2011-2012, both Foundations now aim to produce a report within 5 months of a case being placed "on hold" by the Home Office pending an initial decision. Similar timescales may be anticipated at the appeal stage and an early referral is imperative if you will need to persuade the Tribunal to adjourn your client's appeal to await a report from one of the Foundations.
26.35 There are a wide range of medical experts available, including many who are experienced in preparing medical reports for the purposes of litigation. The Home Office's policy instructions recognise that reports from other experts may be as valuable as those obtained from the Foundations, providing that they comply with the established standards for medico-legal report writing. The important thing to consider is exactly what you want and why you want it. Your expert should have the appropriate forensic expertise to analyse your client's injuries or condition and the ability to present his findings clearly and explain their relevance. The range of issues on which psychological evidence is accepted in the criminal courts is constantly expanding.
26.36 It can also pay to talk to personal injury solicitors. They are dealing on a regular basis with medical experts and will know not only where the expertise lies, but which experts are better able to produce that knowledge in a form which is useful and persuasive to a court. The Expert Witness Directory and other expert directories list vast numbers of medical experts. APIL (the Association of Personal Injury Lawyers) has a directory based on recommendations by members. As you build up relationships with the medical experts you use, use them as sources of information on other experts. Talk to other lawyers in the field. Check whether your expert's reports have been the subject of comment by the Tribunal (see para 21.29).
26.37 As with other expert reports, you should be alert to the risk, particularly when using experts new to the field, that they will be politically unsympathetic to your client. Because the production of the medical report will almost invariably involve examination and interview, it is important to ensure that your client will be as comfortable as possible with the expert. The expert's gender may be particularly significant in relation to sexual torture. Take similar care with the interpreter.
26.38 The Home Office should address in the refusal letter any medical evidence already submitted. Obviously, if a medical report was submitted to corroborate a physical injury, but the refusal letter makes allegations about discrepancies which may be explained by your client's mental condition, it will be necessary to seek a further medical report prior to the appeal. You may also need a supplementary report on the same subject where, for example, the original medical report confirmed scarring consistent with torture but the refusal letter alleges that it could have been caused by some accident (although a good report should already have considered that possibility). Equally, your medical report might detail psychological problems yet the refusal letter nevertheless relies on discrepancies which are explicable by your client's condition. If so, you should get the expert to address directly the relevance of the alleged discrepancies
26.39 The Home Office does not normally advance expert medical evidence. It has been recorded that an experiment in seeking expert evidence to rebut Medical Foundation reports was abandoned when the Home Office found that its expert tended to corroborate the Foundation's findings (see Good, Undoubtedly an Expert? Anthropologists in British asylum courts, The Journal of the Royal Anthropological Institute, Volume 10, Number 1, March 2004).
26.40 During the summer of 2002, the Home Office began routinely submitting a 'generic' expert report headed Notes for Assessing Psychiatric Injury in Asylum Seekers by a Dr Neal. It made various claims about the diagnosis and treatment of PTSD in asylum seekers - including that refugees with PTSD were best treated by returning them to the site of their trauma. None of the claims was based on research into refugees, or even experience of examining asylum seekers on the part of the expert. Judges were nevertheless invited to prefer this generic report to the report of an expert who had examined the appellant. Unsurprisingly, the IAT was unimpressed. In Harunaj v SSHD  UKIAT 04042, it said that:
Dr Neal had not seen the appellant and nor had he prepared a report specific to the appellant and if the basis of [the HOPO's] submissions to us [challenging the appellant's medical report] was to be based on the general notes for reassessing psychiatric injury in asylum seekers we could see no reason why these should be preferred by the Tribunal to a specific report relative to this appellant; we felt that we lacked the qualification to make any judgment relative to psychiatric matters, and certainly could not make a judgment based on general notes as opposed to a judgment between two medical practitioners, both of whom had had the benefit of a consultation with the appellant.
26.42 Where he has no report at all, HOPO may attack the conclusions of the most renowned psychiatrist on the basis of what appears to be no more than the HOPO's own 'medical' analysis. He commonly claims that the psychiatrist's diagnosis is defective because any psychiatrist is incapable of doing more than accepting what he is told. The High Court has in the past been provoked to point out that:
It is not appropriate for a civil servant without medical expertise to reach a conclusion contrary to that reached by a psychiatrist simply by drawing on his own native wit. (R v SSHD, ex parte Kharia  INLR 731)
26.42A Even the Home Office's Asylum Process Guidance on Medical Evidence now states that 'Officers are reminded that, in considering a medical report, they must avoid making clinical judgments about medical evidence.'
26.43 This absurdly nihilistic approach to medical expertise is particular to the Home Office in this jurisdiction. It does not occur in those appeals where the Home Office actually submits its own psychiatric evidence. Indeed, during one appeal, R (Ahmadi) v SSHD  EWHC 1897 (Admin), leading counsel for the Home Office led expert evidence from two psychiatrists aimed at supporting an adverse credibility finding - an approach that somewhat undermines the common claim by HOPOs that psychiatrists can only accept whatever the appellant tells them.
26.44 A medical expert is just that. He is not an expert on asylum and human rights law. It is your job to ensure that the report addresses the correct issues. Doctors accustomed to litigation in other fields may be accustomed to reaching conclusions according to the balance of probabilities, and to disregarding claims which cannot be established on the balance of probabilities. In asylum and human rights appeals however, the question will often be whether there is a reasonable likelihood or serious possibility that an injury was caused in a particular way. The Istanbul Protocol gives guidance commended by the Court of Appeal. In SA (Somalia) v SSHD  EWCA Civ 1302, the Court of Appeal stated that
29. In cases where the account of torture is, or is likely to be, the subject of challenge, Chapter Five of the United Nations Document, known as the Istanbul Protocol, submitted to the United Nations High Commissioner for Human Rights on 9 August 1999 (Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment) is particularly instructive. At paras 186-7, under the heading "D. Examination and Evaluation following specific forms of Torture" it states:
"186.... For each lesion and for the overall pattern of lesions, the physician should indicate the degree of consistency between it and the attribution
(a) Not consistent: the lesion could not have been caused by the trauma described;
(b) Consistent with: the lesion could have been caused by the trauma described, but it is non-specific and there are many other possible causes;
(c) Highly consistent: the lesion could have been caused by the trauma described, and there are few other possible causes;
(d) Typical of: this is an appearance that is usually found with this type of trauma, but there are other possible causes;
(e) Diagnostic of: this appearance could not have been caused in anyway other than that described.
187. Ultimately, it is the overall evaluation of all lesions and not the consistency of each lesion with a particular form of torture that is important in assessing the torture story (see Chapter IV.G for a list of torture methods)."
30. Those requested to supply medical reports supporting allegations of torture by asylum claimants would be well advised to bear those passages in mind, as well as to pay close attention to the guidance concerning objectivity and impartiality set out at paragraph 161 of the Istanbul Protocol.
26.44A In RT (medical reports – causation of scarring) Sri Lanka  UKAIT 00009, the Tribunal referred to this guidance, describing SA as a 'landmark case', and after citing the passage above noted that:
...SA (Somalia) emphasises the importance of a medical report whose findings on consistency express the fact that there are other possible causes (whether many, few or unusually few), specifically examining those to gauge how likely they are, bearing in mind what is known about the individual's life history and experiences. (para 42)
In JL (medical reports-credibility) China  UKUT 00145 (IAC), the Upper Tribunal held that:
(3) The authors of such medical reports also need to understand that what is expected of them is a critical and objective analysis of the injuries and/or symptoms displayed. They need to be vigilant that ultimately whether an appellant's account of the underlying events is or is not credible and plausible is a question of legal appraisal and a matter for the tribunal judge, not the expert doctors (IY ; see also HH (Ethiopia)  EWCA Civ 306 -).
(4) For their part, judges should be aware that, whilst the overall assessment of credibility is for them, medical reports may well involve assessments of the compatibility of the appellant's account with physical marks or symptoms, or mental condition: (SA (Somalia)  EWCA Civ 1302). If the position were otherwise, the central tenets of the Istanbul Protocol would be misconceived, whenever there was a dispute about claimed causation of scars, and judges could not apply its guidance, contrary to what they are enjoined to do by SA (Somalia). Even where medical experts rely heavily on the account given by the person concerned, that does not mean their reports lack or lose their status as independent evidence, although it may reduce very considerably the weight that can be attached to them.
26.45 Refer to the general discussion in chapter 22 about the boundaries of acceptable expert comment, particularly on credibility issues. The sensitivity of the Tribunal to inappropriate comment on credibility is no less strong in relation to medical experts than country experts. But it is unrealistic to pretend that medical experts are not concerned with credibility. Doctors assess credibility in the ordinary course of their work. The Medical Foundation's Guidelines for the examination of survivors of torture state that:
Consistency and credibility are continuously assessed as the interview and examination proceed. In coming to a conclusion, the doctor must make a series of judgments, assessing the subject's demeanour as well as the history and physical signs. (p.22)
... All participants in the asylum process inevitably need to make some estimate of the applicant's credibility. The examining doctor is not excluded from this process of assessment and should have credibility in mind throughout the history-taking and examination and have made some personal assessment of it by the end. (p.27)
26.46 This has been recognised by the courts in B v Special Adjudicator  EWHC 1469 (Admin), Forbes J said that:
[I]t goes without saying that clinicians of the experience of [the psychiatrists whose reports were before the court] must be taken to be well used to assessing the truth or otherwise of assertions made by patients, particularly when assisted by appropriate objective forms of questionnaire and tests used for those purposes... [T]heir reports constitute a significant body of medical evidence which provides strong corroboration of the truth of the claims made by the claimant and his wife as to what had happened to them.
26.47 In MO (Algeria) v SSHD  EWCA Civ 1276, Moses LJ rejected the Tribunal's comment that 'It is not within the doctor's remit to make credibility findings' as 'too prescriptive'. He observed that 'Doctors often do comment upon the consistency and credibility of the historian before them, namely of the patient's account' and 'a doctor is not to be criticised when he does so'. While the doctor's opinion was 'not dispositive', he added that if would be 'unfortunate' if the doctor could not comment because when his opinion on credibility was adverse, 'the fact-finder will be deprived of the benefit of the doctor's opinion that someone has proved to be an unreliable historian.' (para 18)
26.47A In Y and Z (Sri Lanka) v SSHD  EWCA Civ 362, Sedley LJ observed the question of whether an appellant's account of her symptoms was exaggerated was
... in the first instance a matter for the experts themselves, a fundamental aspect of whose expertise is the evaluation of patients' accounts of their symptoms: see R. (on the application of M) v Immigration Appellate Authority  EWHC 582 (Admin) per Moses J. It is only if the tribunal has good and objective reason for discounting that evaluation that it can be modified or—even more radically—disregarded. (para 12)
In KV (scarring - medical evidence) Sri Lanka  UKUT 00230 (IAC), the Tribunal accepted that:
...whilst it is not the role of a medical expert to assess the credibility of a patient's asylum claim, it is part of their role to assess ... clinical plausibility. Principally the latter is (or should be) a matter of examining the physical and psychological sequelae of the claimed ill-treatment and reaching a conclusion as to causation in accordance with the IP hierarchy.
You should always ask your expert to expressly consider whether the appellant might be feigning or exaggerating his symptoms – the Istanbul protocol advises in connection with psychological examinations that:
It is important to recognize that some people falsely allege torture for a range of reasons and that others may exaggerate a relatively minor experience for personal or political reasons. The investigator must always be aware of these possibilities and try to identify potential reasons for exaggeration or fabrication. The clinician should keep in mind, however, that such fabrication requires detailed knowledge about trauma-related symptoms that individuals rarely possess. Inconsistencies in testimony can occur for a number of valid reasons, such as memory impairment due to brain injury, confusion, dissociation, cultural differences in perception of time or fragmentation and repression of traumatic memories. Effective documentation of psychological evidence of torture requires clinicians to have a capacity to evaluate consistencies and inconsistencies in the report. (para 290)
26.48 Medical experts have on occasion been criticised by HOPOs for offering an opinion about how an injury was caused on the ground that such opinion is speculation. That is misconceived. It is the expert's job. What he must make clear however is that his assessment of the likelihood that the injury was caused in a particular way is based upon the application of his expertise, and not on any view he has formed as to the general credibility of the appellant's claim. The Medical Foundation Guidelines state that:
It is no part of the doctor's function to give an opinion as to overall credibility of the case, though it is quite in order to express an opinion as to whether the medical evidence supports the allegation of torture. (p.28)
26.49 The basic rule is that any conclusion that the expert reaches must be transparently justified by the expert's expertise. The report should never state 'I conclude that the appellant has been persecuted in the manner described' or 'I conclude that the history given by the appellant is correct'. But if the expert is able so to conclude, the report may state that it is unlikely that an injury was inflicted by means other than those described by the appellant. That will often be highly material. For example, in Yasotharan v SSHD (00/TH/01816) the IAT said that:
It seems to the Tribunal that where there is credible, reliable expert medical evidence that someone has been injured by a burning cigarette being applied to the skin (which to the Sivakumaran standard is the effect of the medical evidence before us) other possible causes than torture, in all but the exceptional case, can safely be excluded.
26.49A In RR (Challenging evidence) Sri Lanka  UKUT 274 (IAC) (see also para 35.5A), the Upper Tribunal observed in connection with a medical report (which it described as "not particularly compelling evidence" – para 146 - but in which the expert had expressed his view that the appellant's scars could have been caused in the manner described – para 147):
The apparent cigarette burns particularly interest us because it is hard to see how injuries of that kind could be sustained unless they were inflicted deliberately. (para 148)
It noted that the respondent had "never suggested to the appellant that the scars were the result of voluntary mutilation and there is no reason to suggest such a thing except cynicism" (para 149) and continued:
...We accept that Dr Taghipour does not exclude the possibility of these scars being caused in some other way but the best explanation before us is the one given by the appellant.
154. Once it is apparent that the appellant is scarred we have to ask ourselves how he came to be scarred. He says that he was tortured. The other possibilities are that the scars were the result of some innocent but unimaginable mechanism, or that they are the result of torture in very different circumstances to those advanced by the appellant. One might speculate that they were self-inflicted, presumably to promote the appellant's case. None of these explanations is beyond belief but they do not appear to us to be likely. ...
26.50 As indicated above, while the HOPO may criticise an expert for having made some assessment of credibility, he is even more likely to advance the converse criticism, namely that the expert has simply adopted whatever the appellant told him. That is an impermissible approach to expert opinion: in R (AM (Angola)) v SSHD  EWCA Civ 521, which was concerned with whether there was 'independent evidence of torture' sufficient to engage the Home Office's detention policy, Rix LJ placed considerable weight on a medical report from the Helen Bamber Foundation, which the Home Office had argued did not amount to independent evidence of torture "because the reports were based on the appellant's own information". Burnett J had agreed; Rix LJ held that he erred and in particular emphasised that:
As the judge himself rightly stated, Ms Kralj "believed the claimant". That belief, following an expert examination and assessment, also constituted independent evidence of torture. Ms Kralj's belief was her own independent belief, even if it was in part based on AM's account. However, the judge was mistaken to suggest that such belief was merely as a result of "taking everything she said at face value". A fair reading of her reports plainly went very much further than that. If an independent expert's findings, expert opinion, and honest belief (no one suggested that her belief was other than honest) are to be refused the status of independent evidence because, as must inevitably happen, to some extent the expert starts with an account from her client and patient, then practically all meaning would be taken from the clearly important policy that, in the absence of very exceptional circumstances suggesting otherwise, independent evidence of torture makes the victim unsuitable for detention. That conclusion is a fortiori where the independent expert is applying the internationally recognised Istanbul Protocol designed for the reporting on and assessment of signs of torture. A requirement of "evidence" is not the same as a requirement of proof, conclusive or otherwise. Whether evidence amounts to proof, on any particular standard (and the burden and standard of proof in asylum cases are not high), is a matter of weight and assessment. (para 30)
26.51 Unfortunately, the Tribunal is not immune from adopting a similar approach. A judge sometimes appears to form an assessment of credibility independently of the medical evidence and then consider the value of the medical evidence in light of the fact that the appellant lied to the expert. The Courts have emphasised that to 'put the cart before the horse' in this way is the wrong approach.
'The medical reports of [the psychiatrists] refer to the clinical depression and post traumatic stress disorder of both applicants resulting from the rape incident. However, these reports were based upon the evidence which the appellant and his wife gave the doctors. I therefore attach little weight to the reports bearing in mind that I have found both the appellant and his wife to be without credibility.'
Forbes J commented that:
It goes without saying that the Adjudicator was not bound to accept the medical evidence without question. However, if the medical evidence was to be rejected by her, it had to be rejected on a reasoned and proper basis. Moreover, in my view, it is clear from the authorities that the evidence in question should have formed part of the overall material to be taken into account by the Adjudicator when considering the credibility of the claimant and his wife, before any final conclusion was reached by the Adjudicator as to the truth of their claims.
It is clear to me that the Adjudicator used her adverse findings of credibility with regard to the claimant and his wife as the means whereby to reject the important and significant evidence of [the psychiatrists]. That was putting the cart before the horse. [Their] evidence... was strongly corroborative of the truth of the account given by the claimant and his wife about the serious rape that was suffered by the wife. It was therefore necessary for the Adjudicator to take that evidence into account as part of her consideration of all the evidence, before coming to any conclusion as to the credibility of the claimant and his wife.
26.53A In Mibanga v SSHD  EWCA Civ 367, the Court of Appeal emphasised the importance of considering medical evidence relevant to credibility as part of the process of reaching a conclusion as to credibility. Buxton LJ said that
Where, as in this case, complaint is made of the reasoning of an adjudicator in respect of a question of fact (that is to say credibility), particular care is necessary to ensure that the criticism is as to the fundamental approach of the adjudicator, and does not merely reflect a feeling on the part of the appellate tribunal that it might itself have taken a different view of the matter from that that appealed to the adjudicator....
[T]his case does meet that criterion. The adjudicator's failing was that she artificially separated the medical evidence from the rest of the evidence and reached conclusions as to credibility without reference to that medical evidence; and then, no doubt inevitably on that premise, found that the medical evidence was of no assistance to her. That was a structural failing, not just an error of appreciation... (para 29-30)
See also the comments of Wilson J in relation to both country and medical evidence quoted at para 22.31A.
26.53B The Upper Tribunal has emphasised that while a judge is entitled to reject a clinical diagnosis supported by expert evidence she "must give clear reasons for doing so which engage adequately with a medical opinion representing the judgment or a professional psychiatrist on what he has seen of the appellant": BN (psychiatric evidence – discrepancies) Albania  UKUT 279 (IAC).
26.54 This section should be read in conjunction with chapter 23. Also refer to the Medical Foundation's Guidelines for the examination of survivors of torture. Supply it to your expert if he is not already familiar with it. You should evaluate the report in light of the guidance in section 3 of that publication, and the Istanbul Protocol.
26.55 The medical expert should be willing to discuss his draft with you and respond to reasonable comments, so long as it does not lead to his opinion being distorted or misrepresented (see para 23.26 for general guidance). If you have concerns in relation to a Medical Foundation or Helen Bamber Foundation report which, for whatever reason, cannot be dealt with by the writer, then it is worth discussing them with one of the Foundation's full time staff.
26.56 The report should always start with a detailed explanation of the writer's qualifications. Do not assume that the HOPO or judge will know what the string of initials after the expert's name mean. Nor can it be assumed that everyone will be familiar with which disciplines are appropriate to different issues: a HOPO may allege at the hearing that your expert does not hold the appropriate qualifications. Do not assume that your audience will be fully conversant with the distinction between psychiatrists and psychologists and when one or other is appropriate.
26.57 As with country experts, it is vital that a medical expert demonstrates what differentiates his analysis from that of a lay person. As indicated above, the HOPO is particularly likely to attack a medical report where the appellant's mental condition is used to corroborate past ill-treatment. It is therefore important that such experts are made aware of this, and that the report pre-empts any legitimate concern. This process is particularly important if the expert will not be giving oral evidence, and so will not have that opportunity to answer criticisms. The report must also demonstrate how the examination conducted formed a sufficient basis for the opinions expressed. That is especially important for psychiatric reports. In XS (Kosovo - Adjudicator's conduct - psychiatric report) Serbia and Montenegro  UKIAT 00093, the Tribunal stated that
40. Where the Adjudicator erred in relation to these reports and Dr Turner's in particular, is that he failed to realise that they were seeking to address those two concerns which commonly arise: first, to what extent was their diagnosis dependant on the Appellant's account of what had happened, and second, to what extent had they deployed their experience and expertise to reach a conclusion which was objectively supportable rather than one which simply accepted symptoms which could be described but which could not be verified. The Adjudicator dealt with the issues as if Dr Turner's report was a commonplace report which simply accepted the Claimant's evidence, concluded that what he said happened had happened and accepted as equally truthful the Appellant's own description of symptoms; it is that type of report which is of such limited value in assessing credibility or illness.
41. We are very far from saying that an Adjudicator would be bound to accept the reports' conclusions however. He could still say that those issues were not persuasively addressed. But these were reports of significantly greater authority and care than is so often found. They did seek to grapple with those difficult issues. They should have been considered on that basis. Instead, those material factors were ignored and they were dealt with as if the conclusions were simply dependant on an unqualified acceptance of whatever the Appellant told them, when the psychiatrists and Dr Turner in particular, with reason, were denying that that was so.
26.58 A medical report on a physical injury need not and should not regurgitate your client's entire account of her experiences in her country of origin. It need deal only with the matters upon which the expert is being asked to form a view. One would expect a physical report on evidence of torture to include a history of that torture. You would not expect it to include a history of the appellant's political activities. If the report does reproduce irrelevant detail of your client's case, you may ask the expert to omit it from the final report.
26.59 A report on the appellant's mental condition may involve taking a much fuller history from the patient and reproducing that history in the report. Indeed, given the sensitivity in taking a full history from a survivor of torture or sexual violence, it may sometimes contain additional details which your client only felt able to disclose in the context of a clinical interview. However, it should not consist merely of a long statement taken from the client followed by a short comment at the end. The history which is reproduced should still be limited to that which is relevant to the diagnosis, and should be closely tied to the diagnosis.
26.60 Always check any factual history in the report against your client's statement and interview. It may be that the inconsistency is symptomatic of the condition that the expert has diagnosed. But you nevertheless need to be aware of it. The HOPO may try to cross-examine on it and there is also the risk that the judge may rely upon it, even if it has not been raised during the hearing. The Tribunal's Practice Direction requires experts to have been provided with the Home Office's decision letter, any previous reports, and any previous accounts the appellant has given of his history. In JL (medical reports-credibility) China  UKUT 00145 (IAC), the Tribunal emphasised that:
Those writing medical reports for use in immigration and asylum appeals should ensure where possible that, before forming their opinions, they study any assessments that have already been made of the appellant's credibility by the immigration authorities and/or a tribunal judge (SS (Sri Lanka)  EWCA Civ 155 ; BN (psychiatric evidence discrepancies) Albania  UKUT 279 (IAC) at , )). When the materials to which they should have regard include previous determinations by a judge, they should not conduct a running commentary on the reasoning of the judge who has made such findings, but should concentrate on describing and evaluating the medical evidence (IY (Turkey)  EWCA Civ 1560 .
It is particularly important with medical reports that it is evident that the expert has read these with care, and a failure to notice material discrepancies in the account given to the expert and that given previously to the Home Office may be seen as undermining the weight to be given to his opinion. His report will be of more assistance if he notes the discrepancy and says whether, and why or why not, it affects his opinion.
26.61 As with other expert reports, presentation is important. Check spelling, punctuation and grammar. If photographs and/or diagrams are provided, ensure that these are of good quality, clearly labelled, and consistent with the body of the report.
26.62 Refer to para 23.45 concerning the presentation of expert evidence during the appeal process, and the desirability that it is served in time to seek a direction that the Home Office either indicate that it is not disputed or particularise the grounds upon which it is disputed. The Home Office states in its AI on the Foundations:
In cases where an MLR is submitted after the claim has been refused, the case should be reviewed before any appeal. The report should be carefully considered taking all evidence into account in accordance with the principles set out above. It is important to fully consider the MLR in the context of the evidence as a whole to properly assess whether such evidence may have resulted in a different overall assessment of credibility and evaluation of future risk had it been available before the initial decision. It is not sufficient to maintain, without clear explanation, that previous adverse credibility findings mean the MLR makes no difference to those findings. Having considered the report it may be appropriate to withdraw the decision only if it is clear that a grant of Asylum, Humanitarian Protection or Discretionary Leave is appropriate. If the refusal is to be maintained it may be appropriate to provide a supplementary RFRL setting out how the report has been considered and why the decision is to be maintained. Caseworkers must ensure that the legal representative is provided with a copy of any supplementary refusal letter prior to the appeal to ensure that the appeal can proceed without delay.
26.63 You will normally be asked at the CMRH or when completing a reply form for a PHR what the position is in relation to medical evidence (see chapter 6). If you need an adjournment to present medical evidence, you should ensure that the reasons are properly explained, for example the waiting lists of the Medical Foundation or experts of similar standing. The Tribunal will not normally be prepared to adjourn a case for a Medical Foundation report if one can be obtained more quickly from another suitably qualified expert – be prepared to show that you have checked for other suitable experts to see whether one can provide a report sooner. The Home Office sometimes implies that such reports are available upon demand (see above para 26.33 for its own policy of agreeing postponements of decisions to await reports from the Medical Foundation). You might also refer to the UNHCR Handbook's provision in relation to mentally disturbed asylum seekers that 'The examiner should, in such cases, whenever possible, obtain a medical report' (paragraph 208). At the appeal stage, the examiner is the Tribunal.
26.64 As with other experts, it will often be beneficial for the medical expert to be called to give oral evidence where his conclusions are disputed (see chapter 25).
Examining Asylum Seekers: A Health Professional's Guide to Medical and Psychological Evaluations of Torture (Physicians for Human Rights) (www.phrusa.org) (An abridged version appears on the website)
Medical evidence: Guidance for Doctors and Lawyers (Produced jointly by the Law Society and the British Medical Association)