He Named My Dementia Capacity Assessment After Himself — Then the Judge Required the Psychometric Validation Data Only I Had Collected

The scored ACE-III test booklet was in the sealed evidence folder on Dr. Siobhán Mulcahy’s desk. The booklet was the original completed assessment — the one she had administered to the testator, the one where the testator had written his responses in the spaces provided, and she had scored each domain as the session progressed. The score “72/100” was on the cover page in her handwriting, written at the end of the session after she had totalled the domain scores.

Aoife was at the observation desk, reviewing the session recording from the previous afternoon — a different case, a different referral, a 71-year-old woman whose GP had expressed concerns about her capacity to manage her financial affairs. Siobhán had administered the same battery to the woman the previous day. The recording was for the session documentation file.

Siobhán set the evidence folder aside and opened the assessment documentation for the current work. She had three active referrals: the testamentary capacity case, which was complete; the financial affairs case from yesterday, which was in documentation; and a new referral that had arrived that morning — a 66-year-old man referred by his solicitors for a pre-litigation capacity evaluation before a property dispute reached the courts.

She picked up the evidence folder. She was not going to open it now. She had already completed the testamentary capacity report. She held it for a moment and set it back on the desk.

Aoife said, without looking up from the recording: “72/100 with the TMT-B time deficit. Do you often see that combination?”

She said: “In MCI cases at this severity level, yes. The ACE-III total below 82 and the TMT-B time above the age-adjusted cut-off together are diagnostic of the pattern. Neither alone is sufficient — you need the combination.”

Aoife said: “What’s the age-adjusted cut-off for TMT-B?”

She said: “For a 78-year-old male, the normative upper limit for TMT-B completion time is approximately 3 minutes. He completed it in 4 minutes 12 seconds. That’s above the cut-off. Combined with the ACE-III memory subdomain score of 18/26 and the executive function items, the clinical picture is consistent with mild cognitive impairment.”

She had administered the Trail Making Test B first, before the ACE-III full battery — starting with the test that would be the most fatiguing, when the testator was freshest. She had explained the task: connect the numbered and lettered circles in alternating sequence, 1 to A to 2 to B, as quickly as possible without lifting the pen. The testator had worked through the sheet, his hand moving slowly, his eye tracking between numbers and letters. She had watched the time. At 4 minutes 12 seconds, he had completed the sequence.

She had said: “That’s good. Let’s take a short break before we continue.”

She had noted the time in the session record. She had not told him what 4 minutes 12 seconds meant against the normative data. The session had not been the place for that.

She had administered the ACE-III battery in full — all five domains: attention, memory, fluency, language, and visuospatial. The memory domain had been the most revealing: the three-word registration and recall sequence, where the testator had been unable to recall all three words at the delayed recall item without prompting. The score for the memory domain: 18/26.

At the end of the battery, she had totalled the domain scores. She had written “72/100” on the cover of the booklet.

Aoife said: “And the report conclusion?”

She said: “The ACE-III score of 72/100, combined with the TMT-B executive function deficit, is consistent with mild cognitive impairment at the time of will execution. The clinical findings are sufficient to raise a question about testamentary capacity. The legal determination is for the court.” She sealed the evidence folder. “The report is complete. BPS-CP-SM-3314 on the signed copy.”

She had read the Court of Protection application three weeks after filing the report. She had read “Fairbanks Testamentary Capacity Assessment — a professional capacity review commissioned and supervised by Senior Partner R. Fairbanks.” She had read “psychology assessment support: Dr. Siobhán Mulcahy, BPS-CP-SM-3314.”

She had opened the evidence folder. She had read “72/100.” She had closed the folder.

She had not annotated the application. She had logged the next assessment.

The “before” had been the evening she had submitted the assessment report, when Fairbanks had called.

He had said: “72/100 with the TMT-B deficit — this is the clinical evidence we need to contest the will.” She had said: “The ACE-III subdomain pattern is consistent with MCI at the time of execution — the memory and executive function deficits together constitute the clinical finding.” He had said: “This is exactly what the court application needs.” She had said: “The assessment is certified under BPS-CP-SM-3314.” He had said: “Excellent work, Siobhán.” She had said: “Thank you.” She had filed the assessment report. She had noted: “what the court application needs.” The application needed the finding. She had made the finding.

She opened the BPS registration record on her computer. BPS-CP-SM-3314. She closed it. She opened the evidence folder. She read “72/100.” She closed the folder. She set it back in its position on the desk — to the right of the keyboard, where it had been since she had received the Court of Protection application. She opened the financial affairs documentation file. She began the session notes.

The BPS registration — BPS-CP-SM-3314 — was a Chartered Psychologist designation of the British Psychological Society. She had held the registration for thirteen years. It required a doctoral-level qualification in applied psychology, supervised practice hours, continuing professional development, and compliance with the BPS Code of Ethics and Conduct. She was also HCPC-registered as a practitioner psychologist — the statutory registration required to practice as a psychologist in the UK.

The testamentary capacity assessment pathway within her clinical practice had developed over six years. She had administered ACE-III and related batteries in 31 probate and Court of Protection cases. The ACE-III — Addenbrooke’s Cognitive Examination, third edition — was a 100-point screening battery validated for use in clinical and legal settings to assess cognitive function. It had five subdomains: attention (18 points), memory (26 points), fluency (14 points), language (26 points), and visuospatial (16 points). The validation studies for the ACE-III in testamentary capacity settings had established a threshold of 82/100 as the cut-off below which MCI was the likely explanation for the cognitive profile.

She had found, in her 31 cases, that the combination of a below-threshold ACE-III total with a TMT-B executive function finding produced the clearest clinical picture for the courts. The memory subdomain was the most commonly affected in early MCI. The TMT-B — the alternating number-letter sequence task — was the most sensitive measure of executive function that could be administered in a one-session assessment without fatiguing the subject excessively. Together, the two findings gave the court a quantified memory deficit and a quantified executive processing speed deficit: both the functions most relevant to testamentary capacity, the ability to know one’s assets and beneficiaries and to understand the effect of the will.

BPS-CP-SM-3314 was the registration that certified her competence in this assessment pathway. It was on the signed assessment report. It was on the evidence folder. It was what the court would rely on when evaluating the expert evidence.

The estate litigation meeting had been at the law firm’s offices — the beneficiaries’ legal team on one side of the table, Fairbanks presenting on the other. She was not there. She had produced the assessment and filed the report. The meeting was the legal proceeding that the assessment supported.

Fairbanks had described “our capacity assessment programme” to the beneficiaries’ legal team. He had presented the MCI finding — the ACE-III result, the TMT-B executive function deficit. He had described the finding as the firm’s clinical evidence basis for contesting the will. He had not named Siobhán. He had not named the ACE-III battery. He had not described the assessment methodology.

She had learned about the presentation from the meeting notes, which had been circulated to her as the assessing psychologist for the case record. She had read: “Fairbanks presented the capacity assessment findings.” She had noted it. She had gone back to the financial affairs documentation.

The court directions notice had been issued through the Court of Protection’s case management system. Master Whitmore’s court office had contacted her directly — the BPS registration on the assessment report had identified her as the assessing psychologist.

“Dr. Mulcahy — the Court of Protection has issued directions in the testamentary capacity dispute. The court requires the following for the directions hearing: the original neuropsychological assessment documentation, certified by the BPS Chartered Psychologist who administered the assessment. BPS registration BPS-CP-SM-3314 is identified on the report as the administering psychologist’s registration. Please confirm your availability to provide expert testimony at the substantive hearing.”

She read “the BPS Chartered Psychologist who administered the assessment.”

She read “BPS-CP-SM-3314.”

She opened the BPS registration record. BPS-CP-SM-3314. She opened the evidence folder. She read “72/100.” She closed it.

She did not call Fairbanks.

She opened the reply field. She confirmed her availability. She prepared the court documentation package: the original signed assessment report, the ACE-III domain score breakdown, the TMT-B session record and time notation, the BPS registration certificate, the HCPC registration certificate, the scope of practice document for testamentary capacity assessment, and a written summary of the assessment methodology — the validated battery approach, the normative comparison data, and the clinical reasoning from the subdomain pattern to the MCI finding.

The documentation had taken her three hours.

She sent it to the court’s contact address. She returned to the financial affairs case — the 71-year-old woman from the previous day. She had the session notes to complete and the preliminary assessment framework to draft before the formal report stage.

Fairbanks had been at his desk when the court directions had been served to the firm. He had been pleased, initially — court directions meant the case was proceeding to hearing, which was what the client wanted.

He had read the court’s specific requirement for expert testimony. He had read “BPS Chartered Psychologist who administered the assessment.”

He had read BPS-CP-SM-3314.

He had told the firm’s litigation team to prepare for the expert evidence presentation at the hearing.

The litigation team had come back within the hour. They had looked uncomfortable. “The Court of Protection’s expert evidence requirements under CPR Part 35 require the expert who conducted the assessment to testify. That’s Dr. Mulcahy. BPS-CP-SM-3314 is her registration. You’re a solicitor. The court will not treat you as a neuropsychological expert witness. You cannot explain ACE-III subdomain scoring or MCI diagnostic criteria under examination.”

He had said: “I managed the instruction. I commissioned the assessment. I submitted the court application.”

The litigation team had said: “The court application names the assessment as ‘Fairbanks Testamentary Capacity Assessment.’ The BPS registration on the actual assessment document is Dr. Mulcahy’s. The court will need her to testify on the assessment methodology.”

He had looked at the court application on his screen. “Fairbanks Testamentary Capacity Assessment.”

He had said: “Has Dr. Mulcahy been contacted?”

The litigation team had said: “She confirmed her availability this morning. She sent the documentation this morning. She didn’t contact the firm first.”

He had not said anything for a moment. Then he had said: “I’ll prepare the court bundle.” He had begun the amendment process that evening.

He had been a probate solicitor for twenty-two years. He had managed complex estate disputes, high-value asset distributions, contested wills. He had instructed expert witnesses in dozens of cases — medical practitioners, forensic accountants, property valuers, financial advisors. He had always been the instructing solicitor: the person who identified the expert the case needed, commissioned the assessment, integrated the expert’s findings into the legal argument.

The Court of Protection work had not been different in principle. He had identified the need for a neuropsychological capacity assessment. He had instructed Dr. Mulcahy. He had received her findings and incorporated them into the court application. He was the solicitor of record. He managed the case.

But the Court of Protection’s expert evidence rules were precise in a way that PI litigation rules were not. Civil Procedure Rules Part 35 was specific: the expert who had conducted the assessment was the expert who testified. Not the expert’s instructing solicitor. Not the partner who had managed the instruction. The expert. The person who had administered the ACE-III battery and scored the domain items and formed the clinical judgment about the subdomain pattern.

He could not be examined on the ACE-III memory subdomain scoring. He knew what 18/26 meant — he had read the report. He knew what the TMT-B time of 4 minutes 12 seconds indicated — she had explained it to him when she had delivered the findings. But knowing what a finding means and being able to explain under examination how the finding was produced — the testing methodology, the normative comparison, the clinical reasoning — were completely different things.

He had managed the case well. He had identified the capacity question early. He had instructed the right expert. He had included the expert’s findings in the court application at the right time. All of that had been correct. The problem was the court application’s attribution: “Fairbanks Testamentary Capacity Assessment.” He had named it that because he was the solicitor of record for the capacity instruction. He had submitted it under his firm’s name because the firm was the court’s correspondent for the case. He had not thought about whether naming the assessment after himself — rather than after the psychologist who had administered it — would matter when the court required the assessment methodology to be defended.

The court was asking for the psychologist. The psychologist had already responded without contacting him.

He had said “excellent work, Siobhán” when she had delivered the findings. He had meant it. He had understood her work as excellent — as precisely what the case required. He had not examined whether his understanding of her work as what the case required was the same as understanding her work as a clinical discovery that she had made.

He filed the amendment. He opened the firm protocol template.

The evidence folder was on her desk, to the right of the keyboard. She had set it there when she had received the court directions and had not moved it since. She was at her computer, working through the court documentation checklist — she had a list from the court directions order, and she was verifying each item against what she had sent and what she still needed to prepare.

The checklist had seven items. She had sent six. The seventh was the witness statement — a formal signed document setting out her qualifications, experience, and the scope of her expert opinion. She had not yet prepared the witness statement. She drafted it now.

It was four pages. Her BPS registration. Her HCPC registration. Her doctoral training in neuropsychological assessment. Her eleven years of clinical experience administering testamentary capacity batteries. The scope of her expert opinion: the ACE-III and TMT-B findings, the clinical meaning of 72/100 in the context of the assessment, and her opinion on whether the pattern was consistent with MCI at the time of will execution. She had an opinion. BPS-CP-SM-3314 underpinned the opinion.

She completed the witness statement. She sent it to the court’s contact address. She closed the checklist. She went to the financial affairs report.

She had drafted the witness statement in her consulting room after the financial affairs report was complete. It had taken longer than she had expected — not because the content was difficult, but because the witness statement required her to describe her qualifications and experience in formal legal language, citing specific training programs, supervision hours, and case experience in a format that a court would accept as a qualification statement.

She had done this before — had prepared witness statements for three previous Court of Protection cases. She knew the format. But each statement was different because each reflected her current qualification record, which changed with each year of CPD and each additional case.

She had described, in the witness statement for this case: her BPS doctoral-level training, her HCPC registration, her thirteen years of testamentary capacity assessment practice, her 31 cases at the time of the assessment, and her specific experience with the ACE-III battery in Court of Protection settings. The statement took the court through her qualifications as a systematic account of what entitled her to form and express the clinical opinion the court would need to evaluate.

The evidence folder sat on her desk while she drafted. She had not opened it while drafting the statement. The statement was about her qualifications. The booklet was the evidence.

She sent the witness statement. She went to the new referral brief — the 66-year-old man referred for the property dispute evaluation. She read the referral. She noted the clinical question: did the referral contain information suggesting a particular cognitive vulnerability? The referral mentioned a recent diagnosis of type 2 diabetes, which could affect cognitive function at some severity levels. She noted this as a consideration for the assessment framework. She would ask about glycaemic control at the start of the session.

The Court of Protection hearing was a formal one — a dispute hearing before Master Whitmore, a specialist judge. The public gallery was closed; the hearing was in chambers. The parties were the estate’s contesting beneficiaries, represented by their respective legal teams, and the court’s own capacity assessment expert, who was Siobhán.

Fairbanks was in the room in his capacity as the instructing solicitor. His introduction was brief. “Dr. Mulcahy is the BPS Chartered Psychologist who administered the testamentary capacity assessment. All neuropsychological methodology questions are for her.” He sat down. He did not speak on clinical topics again.

Master Whitmore began with the assessment documentation. He had the ACE-III booklet in front of him — the court bundle included the scanned copy; Siobhán had the original in the evidence folder on the witness table.

She opened the evidence folder. She took out the scored ACE-III booklet. She placed it beside the assessment report on the witness table.

The booklet was in its original condition — the testator’s handwriting on the response pages, his attempt at the three-word recall task, his drawing on the visuospatial domain pages. The “72/100” on the cover, in her handwriting.

Master Whitmore said: “Dr. Mulcahy, please explain the assessment process — what was administered, in what order, and on what basis you reached the clinical findings described in your report.”

She said: “I began with the Trail Making Test B — the test most sensitive to executive function deficits and the most fatiguing, administered when the testator was freshest. The testator completed the task in 4 minutes 12 seconds. The age-adjusted normative upper limit for a 78-year-old male is approximately 3 minutes. That result indicates an executive function processing speed deficit.”

She continued through the ACE-III battery: the attention domain, the memory domain — “three-word registration and recall, with delayed recall attempted without prompting. The testator recalled one of three words without prompting. The memory domain score was 18/26” — the fluency domain, the language domain, the visuospatial domain.

She described the score interpretation: “The total ACE-III score of 72/100 falls below the threshold of 82/100 that the ACE-III validation studies identify as the threshold for MCI. The combination of the below-threshold total score with the TMT-B executive function finding is the clinical basis for the MCI assessment. Neither finding in isolation is diagnostic. The combination is.”

She was asked 19 questions. The opposing beneficiaries’ counsel challenged the normative comparison data — whether the age-adjusted norms for TMT-B were applicable to the testator’s educational background. She answered from the ACE-III validation literature, citing the stratified normative data by age and education level that showed the testator’s performance was below the threshold even using the higher-education-adjusted norms.

She was asked whether the testator had understood the questions during the assessment. She said: “He understood the questions. His responses were appropriate to the prompts. The deficit was in retrieval and executive processing speed, not in comprehension.”

She was asked whether 72/100 was a definitive diagnosis of MCI or a clinical indication. She said: “The ACE-III is a screening tool, validated for use in assessing testamentary capacity disputes. A score of 72/100 with the TMT-B deficit pattern is a clinical indication of MCI. A definitive diagnosis requires a full neuropsychological assessment. The clinical indication is sufficient to establish that the capacity question exists — which is the court’s threshold for considering the evidence.”

Master Whitmore wrote throughout. At the close of the technical examination, he said: “Dr. Mulcahy, your documentation is thorough. The BPS registration and the ACE-III methodology are clear in the court record.”

The court record, as the clerk typed it: “BPS Chartered Psychologist: Dr. Siobhán Mulcahy, BPS-CP-SM-3314. ACE-III 72/100, TMT-B 4:12. Clinical finding: consistent with MCI at time of will execution.”

Aoife had been waiting when Siobhán returned to the office. She said: “BPS-CP-SM-3314 in the court record.”

Siobhán said: “Yes.”

Aoife said: “72/100 in the record.”

She said: “Yes.” She took the ACE-III booklet from the evidence folder. She read “72/100” on the cover. She put it back in the folder. She closed the folder.

Fairbanks called that evening. He said: “The hearing outcome was satisfactory. Your assessment was the key evidence.” She said: “The ACE-III methodology was complete.” He said: “Yes. I’ve amended the court application — your name and BPS registration. And I’m implementing a firm protocol requiring BPS-registered psychologist named authorship on all capacity assessment court applications.” She said: “Yes.” He said: “Excellent work, Siobhán.” She said: “Thank you.” She put the booklet back in the folder. She opened the next assessment file.

He had said it again. The second time. She had said “thank you” the first time. She had said “yes” the second time. She had put the booklet in the folder and opened the next assessment file.

Master Whitmore had concluded the technical examination with one additional question, which he had addressed to Siobhán before releasing the witness: “Dr. Mulcahy, in your professional judgment, is the ACE-III battery and the TMT-B supplement an appropriate evidential basis for a testamentary capacity determination in a Court of Protection proceeding?”

She had said: “The ACE-III is validated for use in testamentary capacity assessments — the validation studies specifically address the Court of Protection setting. It is an appropriate screening instrument for establishing the presence of a cognitive profile consistent with MCI. For a definitive capacity determination, the court would typically want to see the screening assessment alongside the clinical history and, where available, collateral information from witnesses to the testator’s behavior. In this case, I have provided the screening assessment. The clinical finding is that the ACE-III and TMT-B pattern is consistent with MCI.”

Master Whitmore had written. He had said: “Thank you, Dr. Mulcahy. The court record will carry BPS-CP-SM-3314 and the ACE-III finding.”

He had then addressed both parties’ counsel and Fairbanks, who was still in the room. He had said: “The court will give appropriate weight to the expert evidence in the capacity determination.” That was the end of the technical examination session.

Siobhán had picked up the evidence folder and the assessment report from the witness table and returned to her seat. The court record was being typed by the clerk. BPS-CP-SM-3314. 72/100.

The formal court ruling on the testamentary capacity question would come later — after submissions and deliberation. She was the expert witness. Her role in the court proceeding was complete. Whether the will was valid was the court’s determination. Her finding was: the ACE-III and TMT-B pattern is consistent with MCI at the time of will execution.

That finding was in the record. BPS-CP-SM-3314. It would remain there.

She was preparing the new assessment session — a different referral, a different testator, a different clinical question. The new blank ACE-III booklet was on the table. Before beginning, she took the old booklet from the evidence folder — the completed one, the testator’s responses on each page, the “72/100” on the cover in her handwriting — and placed it beside the new blank booklet.

She used it as a scoring calibration reference: comparing the domain subdomain structure of the new assessment against the known MCI-positive scoring pattern from the previous case, confirming her approach before starting the new session. Aoife was preparing the recording equipment in the corner of the room.

The Court of Protection record was in the legal archive — “BPS Chartered Psychologist: Dr. Siobhán Mulcahy, BPS-CP-SM-3314, ACE-III 72/100, MCI at time of execution.” She set the old booklet aside. She opened the new blank booklet. She wrote the new reference number on the cover. She prepared the first domain questions. She opened the booklet. She wrote the score on the cover.

The amended court application had arrived by email from Fairbanks’s firm: “Assessment by Dr. Siobhán Mulcahy, C.Psychol, BPS-CP-SM-3314.” She had read it. She had filed it in the testamentary capacity case folder alongside the original court application with “psychology assessment support.” Both were in the folder.

The firm protocol had arrived the following day — the formal policy document requiring BPS-registered psychologist named authorship on all capacity assessment court applications. She had read it. She had filed it.

The Court of Protection’s case file carried both the original court application — “Fairbanks Testamentary Capacity Assessment” — and the amended version, in the case bundle. The original was a court document. It was in the file. The amended application was also in the file. She had the court case reference. She had not looked it up since writing it down.

The new testator — the 66-year-old man from the property dispute referral — arrived at 9:30. Aoife had the recording equipment ready. Siobhán had the blank ACE-III booklet open on the assessment table, the scored booklet from the previous case set aside but visible, the testing materials laid out in administration order.

She introduced herself and explained the assessment process to the new testator. He was composed and engaged — he had read the referral letter and understood what the assessment was for. She noted his presentation in the session record. She began the Trail Making Test B.

She set the timer. He began to connect the circles.

The new referral was a property dispute — a significant asset, a contested capacity claim from family members, a legal determination that would affect the distribution of the estate. The clinical question was the same question she had answered in the testamentary capacity case: was this person’s cognitive function sufficient to make a legally valid decision at the relevant time?

She watched the timer. He continued connecting the circles. She made no sound.

Fairbanks’s original lay capacity assessment — his clinical observation at the will signing meeting, where he had concluded capacity was present — was still in the Court of Protection case file. It had been there before Siobhán’s report was filed. It remained there now, in the permanent court record, adjacent to her neuropsychological assessment. She had the court file reference. It would not be removed.

She was not thinking about the court file reference. She was watching the testator connect the circles.

The timer reached 2 minutes 45 seconds. He completed the sequence.

She wrote the time in the session record. She did not say anything. She reached for the ACE-III booklet. She opened the booklet. She wrote the score on the cover.

The 66-year-old testator completed the ACE-III battery in 58 minutes — faster than the previous testator, more confident in his responses. His glycaemic control had been stable for two years, he had said at the start of the session. She had noted it.

The domain scores were markedly different from the testamentary capacity case: attention 17/18, memory 24/26, fluency 12/14, language 25/26, visuospatial 15/16. Total: 93/100.

She had written “93/100” on the cover of the new booklet.

She would run the TMT-B analysis before concluding, and prepare the final report for the instructing solicitors. The preliminary finding was already clear: no cognitive profile consistent with MCI. The cognitive function at the time of assessment was within the normal range for his age.

Aoife was completing the recording administration at the desk. She said: “TMT-B time?”

Siobhán said: “1 minute 47 seconds.” She had noted it in the session record as the testator had completed the sequence. 1 minute 47 seconds was well within the normative range for a 66-year-old male. Significantly below the age-adjusted upper limit.

She prepared the session notes. The evidence folder from the testamentary capacity case was on the reference shelf — she had moved it there when she had set up the assessment room for the new session. The scored booklet inside it, the “72/100” on the cover, the testator’s handwriting on the response pages. It was in its folder. The new booklet, with “93/100” on its cover, was on the assessment table in front of her.

The Court of Protection court file reference for the testamentary capacity case was in her case file record. Fairbanks’s original lay capacity assessment was in the court file, adjacent to her neuropsychological assessment, a permanent part of the case record. She had not thought about it since receiving the court confirmation of the hearing outcome.

She was thinking about the preliminary report for the property dispute referral. She had the domain scores, the TMT-B time, and the clinical interpretation. She would write the report in the morning.

She opened the booklet. She wrote the score on the cover.