Questions of Capacity

By Louise Burrell – 19th August 2020

This judgment has since been published here: DP v London Borough of Hillingdon (Rev 1) [2020] EWCOP 45 

As an Adults Social Worker, I consider people’s mental capacity on a daily basis and complete formal documented mental capacity assessments probably once or twice a week. When financial management is involved this often results in paperwork for a Court of Protection (COP) application. I know the COP is there in the background to my work but once my paperwork is sent in, I have never given it much further consideration.   When the opportunity to observe a COP hearing arose I was very keen to see “what happens next”.

Having just been allocated a case concerning a lady in a care home who wanted to return to her own home, with a mental capacity assessment needed and a possible Section 21a appeal on the horizon, I was particularly keen to attend a Section 21a hearing.  With hearings only published late on the previous day, it was a very frustrating 4 hours that morning – sending emails and hoping for responses to attend whatever hearings I could find across England and Wales that could be identified as about a Section 21a appeal.  Attendance at 3 hearings was attempted: one was vacated, and I got no response from the other in time. I cancelled my request to attend the third one, listed for the afternoon, after Celia Kitzinger, co-director of the Open Justice Court of Protection Project came to my rescue and facilitated my attendance at Case No.11173747 Re DP before Mr Justice Hayden, from the Family Division of the Royal Court of Justice list.  She had attended the first hour or so of the hearing from its start that morning and, knowing of my interests and hearing of my frustrations, she emailed to let me know that I might want to join the hearing-in-progress via MS Teams.

The Question before the Court

This hearing was an appeal to a lower court’s decision on a Section 21a appeal.  Having missed the first hour or so, I was thankful that Celia was able to email a quick summary about DP (the person at the centre of the case) and the issues before the court.  DP was a gentleman in his 70s who, having lived in a care home for 16 years, wanted to move to an alternative care home to be closer his one and only friend outside of the care home environment.  He was not objecting to being in a care home as such. 

At the earlier hearing (on 6 May 2020 before DDJ Chahal QC), DP’s representative argued that there was insufficient evidence to rebut the presumption that P had capacity to make his own decision about where he should live.  The local authority had argued that there was indeed sufficient evidence to rebut that presumption, especially given that what was being requested was an “interim declaration” (under s48 of the Mental Capacity Act) and not a “final declaration” (under s15 of the Mental Capacity Act).  The judge in the earlier hearing had looked at the evidence on DP’s capacity – which was an assessment carried out by a doctor (not present at the hearing)  – and found various problems with the assessment, including that the doctor did not explain to DP why he was visiting him and asking questions, and the fact that the doctor did not discuss the specific decision in relation to which DP’s capacity was being assessed,  i.e. should he stay in this care home or move to another one.  Despite finding fault with the capacity assessment, the judge had concluded nonetheless that the quality of the evidence was sufficient for an interim declaration that (in the wording of s48) “there is reason to believe that P lacks capacity” to make the relevant decision.

My first thoughts were: “why on earth is this before such a senior judge? If he has capacity to make a decision about where to live then, great, get on with the move that’s he is requesting;  if he hasn’t got that capacity, then update your mental capacity assessment and get on with a best interests meeting so the gentleman has at least an answer, be that positive or negative”. 

For DP, the issue was whether or not he could make his own decision to move to another carehome so as to be closer to his friend.  For the Court, the issue was what the court should do if the capacity evidence in the DOLS authorisation wasn’t good enough to rebut the presumption of capacity.

The starting point for the judge at the previous hearing was Re F in which HHJ Marshall QC, discussing the capacity test and differences between an interim declaration and final declaration stated:

The “presumption of capacity” reinforces the general approach of the Act, that “P’s” basic right to have the power to make decisions for himself is to be respected and protected, and can therefore only be displaced by sufficient evidence establishing that he does not have capacity in the relevant respect. However, such a finding is what ultimately grounds a formal declaration under s15 of the Act, and s48 expressly confers powers on the court to take steps “pending” the determination of that question. It follows that the evidence required to found the court’s interim jurisdiction under this section must be something less than that required to justify the ultimate declaration. (Re F [2009] EWHC B30 (Fam)). 

In this case DP, acting via his Accredited Legal Representative with Victoria Butler Cole as his counsel, was challenging the fact that he remained deprived of his liberty despite the manifest shortcomings of the mental capacity assessment that were identified by the judge.  His argument was that if the court is not satisfied that the mental capacity requirement was met, it should either terminate the standard authorisation under the Deprivation of Liberty Safeguards, or vary it to a very short period (the time period of perhaps 2 weeks was mentioned) while a better mental capacity assessment is elicited.  What should not happen is what has happened in this case: it was turned into a standard welfare case, which means considerable delay (now nearly a year) in arriving at a final declaration of capacity.   Basically, the argument was that if the presumption of capacity has not been rebutted, the court cannot make even an interim decision to deprive DP of his liberty.  As the judge said, “It is deeply troubling in a mature democratic society if we are restricting people’s liberty with no foundation to do so.”

Human Rights

Although not quite the learning I had envisioned, observing the discussions between the judge and the legal representatives was very enlightening and has given me a much broader understanding of the law, and in particular the application of human rights.  I had already identified in recent weeks a personal knowledge gap in the application of human rights in my work.  Human rights, like the role of the Court of Protection, have been “lingering in the background” but in the hubbub of my daily practice rarely got real consideration.   Every aspect of the 5 hours of discussions I observed repeatedly returned to consideration of Article 5 (right to liberty and security) and Article 8 (respect for family and private life).  (I have since found the Equality and Human Rights Commission Publication GD.13.401 very helpful). 

The judge repeatedly stated that we should be guided by the principles of other Articles such as Article 6 (right to a fair trial).  Consideration should be given to P being able to access an independent and impartial hearing:  this should be within a reasonable time, without excessive procedural delays, with good conduct and diligence by all parties.  It came to light than DP may have a future claim for damages for unlawful deprivation of liberty.

Mental Capacity & DOLS assessments

It was very worrying to hear the opinions of both judge and legal representatives when discussing mental capacity assessments that are presented to them.  

• They are often “poor”, “bad”, “inadequate”, “not sufficient”, “unsatisfactory”  or “perfunctory”.  Declarations of incapacity might be made “on the thinnest of evidence”.  
• The judge commented on “little insights into capacity” that can be identified from very personal touches and day to day information such as a person’s actions, behaviours, likes and dislikes etc. but which are not evidenced in assessment documents. He specifically asked about what job DP had done before he had the strokes (in 2000 and 2003) that led to his residence in his current care home. (He was a computer programmer.)
• The judge said that the doctor who carried out the capacity assessment “had not explained to [DP] what he had come to assess” adding, “that’s fundamental error” because it  does not give someone the  opportunity to prepare for the assessment or create for them  the best opportunity to provide evidence they can understand, retain, weigh and communicate the relevant decision
• There are often instances where it appears that the assessor has not taken all reasonable and practicable steps to support the person’s capacity
• It is not always clear that the assessment is based on a presumption of capacity that has been “displaced” (this is a “fundamental civil right”).
• In some cases, as here, the assessment may not be assessing the right issues, and therefore missing the mark.  In this case, DP was not asked specifically about whether he understood and had weighed up the pros and cons of a move to another care home.
• Assessments may be rooted in a paternalistic /protectionist approach aimed at protecting P.  This is “missing the point”.  One should “not eclipse or occlude the right of people to assert their own autonomy for good or bad”
• There is a possibility of discriminatory practice due to assumptions related to diagnosis. 
• There is an obligation to avoid unnecessary delays

Similar comments were made about the DOLS reports and the paperwork they considered “not fit for purpose”. If the work of trained professionals is in many cases inadequate, it will be interesting to monitor the situation when the Liberty Protection Safeguards are introduced and care home managers will share the responsibility. 

For me as a practitioner completing mental capacity assessments, and considering training as best interests assessor, it was rather worrying listening to these criticisms.  The judge did comment when he said this is “not surprising considering the volume and pressurised circumstances in which they are undertaken” and that “a pro forma is being used”. These comments have made me take an even more critical look at my own reports and also I have now developed the confidence to insist on multiple visits if required and enough time to complete the assessment to the best of my ability.  Having recently chaired a peer discussion group on the theme of “all practicable steps under COVID restrictions” my colleagues are all finding it difficult to maintain the standards they would like in the current working environment. 

Using a Video-Platform

In recent months, having had to attend or chair meetings on video-platforms, it was useful to observe the judge at this hearing.  I have not yet, under COVID restrictions, needed to hold a remote best interests meeting necessary to gather information and opinions of multiple professionals in order to come to a decision.  Mr Justice Hayden said that, after many months into the COVID enforced ways of working, relying on telephone conference calls, which had been the case in the initial hearing, were unsatisfactory. He felt video calls and being able to see each other were important and should be “standard practice”. 

Mr Justice Hayden was critical of DP’s care home who had been unable to make arrangements for a video call conversation (as opposed to a phone call) with him.  The judge described this as “disappointing” and said: “All creative measures should be employed to enable people in care homes to have access to their family face-to-face. I’m a little bit concerned that this care home hasn’t mastered the video-conferencing platform. Can you later get someone in your team to query this?”   I found this very reassuring because during the hearing I observed, the details of DP’s situation were not much discussed.  All parties were well acquainted with this information through the previous hearing and documents I had not seen and time was spent on the technicalities of the law.  Nonetheless it was obvious that DP remained central in the judge’s thoughts and he was making an additional effort to talk directly to DP himself. 

During the hearing I noticed that there were long periods of silence during which Mr Justice Hayden appeared to be thinking carefully – processing information, gathering his thoughts and considering his wording.  My own experience of video-conference meetings is hurriedly writing inadequate notes, in a kind of short hand that I’m confident I will understand later – and then don’t! After observing this hearing I will have no problem in asking meeting participants to pause a minute whilst giving me time make better records. 

Outcome

I was going to title this section “Conclusion”, but that would be inappropriate. At the close of this particular hearing DP still did not have a decision.  With the capacity assessment deemed inadequate, the previous judge not having addressed the key question of the Section 21a appeal and some administrative errors, Mr Justice Hayden concluded that DP’s case needed to be reheard “expeditiously” before a different district judge – so really, starting all over again.   With my very limited knowledge of the legal process, the process so far appears to be an appalling waste of resources with the time delays very unsettling for DP and detrimental to his wellbeing.  On a positive note, shortfalls have been acknowledged and are now being addressed.  I do hope that by the time the next heating is arranged a new – and better – capacity assessment will have been completed in preparation and that those responsible will not be waiting for the hearing to say a new one is needed. 

Would I observe again ?—- Yep!

I have found the whole observation experience very beneficial.  The googling, looking up of legislation, reading up of quoted case law – both during and after the court attendance – has given me a crash course in legislation, that I now realise, I only thought I understood. Listening to a talk about how the Mental Capacity Act is implemented in the courts is one thing – actually observing it as it happens is very different! 

Human Rights has become real and applied.  I can see more clearly that down at the coal face, we have real opportunity to empower our service users.  And based on what I have observed, I have confidence that if the situation of our service users  should ever require consideration by the Court of Protection,  the judge will ensure their right to participate is facilitated and their right to self-determination, if at all possible, is respected. 

I did not find the process of being able to attend a hearing easy.  Fortunately, this was how I chose to spend my day off.  Being able to respond immediately to an email, being able to set aside anything else you might have on to attend a hearing starting in 20 minutes, on an unknown topic and of an unknown time duration, is not compatible with a busy day’s work with deadlines looming.  

But by gum, I’ve learnt so much more than from the mandatory eLearnings I have recently completed.  Having got to grips with the legislation, I’m now on the lookout for a court hearing before a district judge so as to be able to observe the discussions and decision making regarding capacity, autonomy etc that challenge me on a day to day basis.

Louise Burrell is a locum social worker currently completing assignments in Local Authority Adults social care teams.