Articulate, Eloquent and Passionate – but does P have the Mental Capacity to Make Decisions about Four Areas of her own Life?

By David Thornicroft – 29th June, 2020

Having delivered Mental Capacity Act training for many years I have been meaning to observe a Court of Protection hearing for ages, but it’s one of those things you never get around to. The travelling, making arrangements, what if I turn up in London, or Exeter, or Newcastle or wherever, and the case is cancelled at the last minute? Can I afford to turn down a day’s training (for which I would get paid) in favour of going to the Court (for which I wouldn’t)? Excuses really, I suppose. Then I saw a stream of Twitter posts from Professor Celia Kitzinger encouraging people to take advantage of the fact that the CoP is holding remote hearings. What a great idea. I contacted Celia; she couldn’t have been more helpful, and I applied for permission to observe 3 different hearings on the same day – 10.00am, 12 noon and 1.00pm.

It turned out that the 10.00am hearing was “vacated” (ie cancelled) at the last minute, and the 12 noon hearing was actually private (it had been wrongly listed as public). But I was given permission to observe the 1.00pm hearing.

I’ll give a brief summary of the hearing, and then I’ll give some thoughts and reflections on the whole process. The hearing concerned a woman (I’ll call her “P”) who had been diagnosed with delusional disorder and hoarding disorder. P did not accept either of those diagnoses. P had been assessed by the local authority as lacking mental capacity in four areas of her life: residence; management of property; care; and acquisition and retention of possessions. On the basis of that lack of capacity the Court of Protection had previously granted deputyship to the local authority in respect of P’s property and finances and of her health and welfare. P was challenging these assessments, saying that she did indeed have capacity to make decisions for herself in all of these areas, and therefore the deputyships should be cancelled.

The hearing itself lasted about an hour. District Judge Temple adjourned for 30 minutes to compose her thoughts, and then gave a very detailed explanation of her judgement which lasted about 40 minutes.

Here are some random observations of my own about the hearing …

I think I am reasonably good at finding how to do things on the internet, but I wouldn’t have had a clue about how to access this hearing without Celia’s blog post here and the daily suggestions of listings here. Open justice is a great idea in principle, but if it’s not easy to access, then surely it kind of defeats its own objective?

Which people come to mind when you imagine a court room? The Judge, the lawyers, P – after that then perhaps we’re struggling to think of any others. So, I’d like to commend the Administrative Officer who dealt with my applications quickly and courteously. I emailed my requests to attend the 3 separate hearings at about 9.00pm the previous evening. By 9.30am on the morning of the hearings I had received several replies from the Admin Officer explaining what I could and couldn’t do. All friendly and clear, and not the slightest hint that my request was in any way inconvenient. She is a credit to the Court!

District Judge Temple dialled me in to the conference call (it was all over the telephone, no video) at the correct time, made me feel welcome and explained about the transparency order. I thanked her for allowing me to attend and she replied “It’s a public hearing Mr Thornicroft” – I took this to mean that it was no problem at all and there wasn’t even a question of whether it was appropriate for me to be there. When the hearing started, she explained to everyone who I was, and she also asked the two barristers whether they had any objection to me being sent the paperwork on the hearing (they didn’t).

On the point of the paperwork, it would have been nice to have had access to this during or before the hearing, but I appreciate that it might take time for it to be sent through. Its absence didn’t really affect my ability to follow the hearing. District Judge Temple emailed it to me the following day, and it was very brief: just a one-page “position statement” from each barrister setting out their position on P’s mental capacity.

I was impressed by the fact that P spoke for most of the 60 minutes of the hearing. It consisted of firstly her barrister asking her questions, and secondly the local authority’s barrister asking her questions. The questions were short and to the point (e.g. “tell me about your hoarding…?” or “what makes you think that …?” or “why do you disagree with the diagnosis …?”). Both barristers were then quiet, and they allowed P to answer in as much detail as she wanted. Occasionally, when there was a pause the barrister would start to ask another question just as P started to speak again, and each time the barrister said “Oh I’m sorry, do carry on …”. I felt this allowed the Judge to get a really good picture of P, her opinions, her situation etc.

As an aside, I couldn’t help comparing these barristers’ questions with the journalists’ questions during the Coronavirus daily briefings over the past few months. The journalists’ questions have often been lengthy, complicated and seemingly with the purpose of scoring points rather than getting to the truth!

I found myself wanting to know the extent to which P’s answers to the questions mirrored the reality of her current life. For example, when she said that she didn’t have a problem with hoarding any more, I wanted to know how true that was. I don’t know if there was additional paperwork which would give an answer, but those links to the reality of P’s current situation were never referred to by either barrister, or by the Judge.

P displayed an impressive understanding of various pieces of legislation – for example, she said repeatedly that she doesn’t have to prove her own mental capacity!

P complained at one point that she hadn’t realised that a meeting with a social worker had been for the purpose of assessing her mental capacity. She felt that was a bit underhand, and I think her point was that she would have tried harder if she had realised that it was an assessment. Again, I don’t know whether this is true, and even so it raises the interesting question of whether we should make it clear to P that we are indeed going to be assessing their capacity in this meeting. On the one hand it’s usually a good principle to be honest, but on the other if that means that P will “try harder” then are we really getting an accurate picture of P?

The Judge gave P lots of time to put her case; nothing felt rushed and at the end both barristers, and P, were given the opportunity to add anything else. For the entire 60 minutes, P had probably talked for about 80% of the time.

Of course, a drawback of a telephone-only conference is that there was no body language to observe. We had to rely on voice and verbal language only. Video would have been nice, but I don’t think in this case it was a significant problem.

Both barristers made the point that this is likely to be an ongoing issue. These capacity questions are not single, one-off decisions (like the amputation of a leg, for example), but instead they are ongoing decisions about P’s daily life. For that reason, the Judge gave a lengthy verbal summary and explanation, which she said would be transcribed, to be used as a possible reference point for future disputes.

After a 30-minute adjournment District Judge Temple summarised all of the points that P had raised. She then reminded herself of the relevant parts of the Mental Capacity Act – i.e. how to define a lack of capacity. She also referred to Principles 1, 2 and 3 of the Act, especially Principle 1 which was her starting point, regardless of the fact that she herself, as the Judge when the deputyships had first been granted, had previously agreed that P lacked the capacity to make decisions in these four areas. She stopped when she used a complicated word or phrase (e.g. “predicated on …”) to explain what that meant.

The Judge went carefully through each area and explained why in each of them she was satisfied that P was unable to make the decision. She then said she was satisfied that P had an impairment or disturbance in the functioning of her mind or brain (delusional disorder and hoarding disorder) and that her inability to make each decision was caused by this impairment or disturbance.

District Judge Temple therefore ruled against P, and in favour of the local authority, in all four areas. She said she was satisfied that the presumption of capacity had been rebutted, and therefore the deputyships were valid and would remain.

Finally, the Judge encouraged P to engage with treatment for her conditions and said that if this treatment was successful then it might, in future, lead to her regaining capacity. I thought this was a helpful thing to say as it gave P a glimmer of realistic hope.

Absolutely fascinating to see the law in action. I was relieved to find that there was nothing that I have been saying on MCA training over the past 15 years or so that contradicted what the Judge said, and I really liked the way she set out her reasonings. Even if someone disagreed with the judgement itself (and I think it was a close call – it wasn’t obvious to me which way it would go) then I think P certainly had a very fair and full hearing.

Remote hearings won’t necessarily be around for ever. And it’s so much easier to observe (or in this case listen to) one remotely, than actually going to the court itself. If you’re involved in health & social care in any capacity (pun intended!) then you should take advantage of this opportunity now before it disappears. I’m looking forward to doing it again very soon.

David Thornicroft is Managing Director of St Thomas Training. He says: “We’re based in Hampshire, and we deliver health & social care training all over the country to staff of local authorities, NHS Trusts, housing associations, charities, private care companies etc. Around 60% of our work is to do with the Mental Capacity Act, plus we do a lot of Safeguarding Adults, mental health issues, autism, epilepsy etc. Check out our website here for more details.”

David tweets @DMThornicroft