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Before attempting to instruct any expert, ensure that a clear set of issues that need understanding or opinion, in narrative form, is made.

[The following are fictitious examples]

What was his mental state?” – this is not really an issue. Why? Because mental state is simply a snapshot on a particular day. It is like a doctor physically examining your body on a particular day –  he may find nothing wrong! That doesn’t mean that there is nothing wrong with you. ‘Mental state’ has to be more specific, to mean something of importance. See here for more on mental state examination.

The following example is more specific and meaningful: “We need to understand how and to what extent his state of mind, impacted on his ability to form intention about the crime he is alleged to have committed“. That is more representative of an issue.

The instruction arising from the above, should be something like, “Assess his mental state at the time of the incident, as to his ability to form intention to commit the crime alleged.“.

Another example

Issue: The Tribunal needs to understand whether his pre-existing mental condition was aggravated by the assault and if so to what extent.

Instructions arising:

  1. The expert is asked to assess  the appellant and form a clinical opinion about any pre-existing mental condtion and, if so, to what degree was such mental condition exacerbated by the assault.
  2. Form an opinion as to whether any new condition emerged after the assault

The above is reasonable.

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