Editorial Note 2: The interim judgment addressing the concerns with expert evidence on capacity that arose in this hearing has now been published (18th November 2020) and is available here: https://www.bailii.org/ew/cases/EWCOP/2020/58.html
Editorial Note 1: The Final Report from the Working Group on Medical Experts in the Family Courts was published three days after this blog post and makes some helpful suggestions for managing (and averting) some of the problems we identify. It is available here.
By Celia Kitzinger with Claire Martin, Beth Williams and Katy Dobia, 2 November 2020
A hearing before Mr Justice Poole (COP 13551368) listed for three days (26-28 October 2020) was adjourned, only part-heard, because of inadequate reports from the expert witness.
The expert witness, Dr Q, a consultant psychiatrist, gave evidence that the person at the centre of the case (let’s call her Barbara) lacked mental capacity to make any of the decisions before the court. His evidence simply collapsed under cross-examination.
The Local Authority (represented by Brett Davies) had relied on this expert evidence to support their position that Barbara lacked mental capacity in many significant areas of her life. After cross-examination from the other parties revealed gaps and weaknesses in Dr Q’s report, Brett Davies requested a half-hour adjournment to “anxiously reflect” with his clients on what had happened. He returned to court to report: “It is now the Local Authority’s position that Dr Q’s evidence isn’t sufficient to rebut the presumption of capacity in respect of the issues under discussion.”
There were, he said, “lessons to be learned”. The judge thanked him for his “realism”. Plans were then set in train to adjourn the hearing, to appoint a different expert, and to continue the hearing in mid-January 2021.
In the meantime, there is likely to be an interim judgment by Mr Justice Poole that takes the opportunity to “teach lessons for others” about the kind of evidence a capacity assessor (whether expert witness or practitioner) should properly display by way of evidence. The judge asked for written submissions from the parties as to the deficiencies in the evidence before this court and how they might be avoided in future. (A similar judgment concerning the deficits of a different expert witness report, which – as in this case – wasted three days of court time, has been published here.)
Barbara is 68 years old and has dementia. She’s lived in a care home since early July 2019 though she still has a tenancy on the flat she was living in, alone, before then.
After moving into the care home, Barbara struck up a relationship with another resident, “John” (not his real name). Back in December 2019, the couple were seen kissing and holding hands in communal areas and were several times discovered lying down together in bed – and Barbara has been found naked in John’s bedroom. Barbara would like to marry John, and to leave the care home and live with him in extra care housing.
Staff at the care home became concerned that Barbara may not have capacity to consent to – or to engage in – sexual relations, or to make other important decisions such as where she lives and the care she receives. The care home manager made a referral to Barbara’s social worker, who visited her towards the end of December 2019 and again in January 2020 and assessed her as lacking capacity to consent to sexual relations. Barbara did not agree with this capacity assessment and was clear that she wanted to be free to have an intimate relationship with John.
This led to a series of court hearings in January, March, and July 2020. Barbara acquired an Accredited Legal Representative (ALR); her son was briefly joined as a party and later removed with his consent; and at some point (I’m not sure when) Barbara’s partner, John, also got legal representation. John asserts that Barbara does have capacity to decide where she wants to live and to make her own decisions about what kind of relationship she wants to have with him.
The expert witness, Dr Q, was appointed shortly after Barbara was deprived of her liberty under an urgent authorisation in mid-January 2020. He was asked to report to the court on Barbara’s capacity to conduct the proceedings, and to make decisions about where to live, what care she receives, her contact with others, and her sexual relations – and also her capacity to make decisions about her property and finances including terminating her tenancy agreement. Interim declarations were made that she lacked capacity in all those areas. These interim declarations (or “orders” and “directions”) under s. 48 of the Mental Capacity Act (MCA) 2005 are made where “there is reason to believe that P lacks capacity in relation to the matter” and “it is in P’s best interests to make the order, or give the directions, without delay”. They are made pending subsequent determination as to whether or not, in fact, the person does or does not have the capacity to make their own decisions – and that subsequent determination was the goal of the hearing I observed.
It is a fundamental principle of the Mental Capacity Act 2005 that each person is presumed to have capacity unless it is established that they lack capacity ( s.1(2)). According to Mr Justice Hayden: “The presumption of capacity is the paramount principle in the MCA. It can only be displaced by cogent and well-reasoned analysis” London Borough of Tower Hamlets v PB  EWCOP 34)
A lack of capacity to make a decision cannot be established simply by reference to some ‘condition’ that a person has (e.g. dementia) (s.2(3)(b)): it must be shown that the “impairment of, or a disturbance in the functioning of, the mind or brain” (s.2(1)) causes the person to be unable:
(a) to understand the information relevant to the decision,
(b) to retain that information,
(c) to use or weigh that information as part of the process of making the decision, or
(d) to communicate his decision (whether by talking, using sign language or any other means). (s. 3(1) MCA 2005)
The courts have warned about setting the bar too high since this could operate as an unfair, unnecessary and discriminatory bar against mentally disabled. It’s also been stated that the person must understand the salient information but it is not necessary for them to understand all the peripheral detail (LBC v RYJ  EWHC 2665).
What counts as ‘relevant information’ depends on the decision being made and the circumstances of the case. In relation to sexual contact, a recent decision by Lord Justice Baker in the Court of Appeal (A Local Authority v JB (Rev 2)  EWCA 735) found that the relevant information includes the mechanics of sexual intercourse, the fact that both people must have capacity to consent (and must in fact consent), that pregnancy is a reasonably foreseeable consequence of (heterosexual) intercourse, and that there are health risks involved such as sexually transmitted diseases, the risks of which can be reduced by use of precautions such as a condom. In relation to residence, the relevant information that a person must be able to understand, retain, and weigh includes: what the options are, including what sort of properties they are and what sort of facilities they have; the sort of areas the properties are in and any risks attached to that; the difference between living somewhere and visiting it; what activities the person would be able to do if they lived in each place; whether they would be able to see family and friends if they lived in each place; who they would be living with, and so on. (Re B (By her Litigation Friend the Official Solicitor) v A Local Authority  EWCA Civ 913).
If Barbara is deemed to lack the mental capacity to engage in sexual relations, then she must be ‘protected’ from sexual relations altogether. This would mean supervising her contact with John and monitoring the couple to ensure that they did not engage in sexual relations. It is not possible for anyone to make a ‘best interests’ decision on her behalf that she should be able to have sexual relationships, because this is an ‘excluded decision’ in the Mental Capacity Act:
“Nothing in this Act permits a decision on any of the following matters to be made on behalf of a person— (a) consenting to marriage or a civil partnership; (b) consenting to have sexual relations…” (s. 27(1) MCA 2005).
The criminal law, in the form of the Sexual Offences Act 2003, is also relevant in this case since a sexual act with someone who cannot consent to it (no matter how willingly they assent) is an offence. Offences can be committed by others who facilitate or enable such sexual activities (e.g. by carers who deliberately avoid entering a resident’s room when they know – or ought to know – that they may be involved in sexual activity and that the resident lacks capacity to consent to sex). There is increasing concern about what this means for the fundamental human rights of disabled people, both in relation to the right to private and family life (Article 8 of the Human Rights Act) and in relation to the UN Convention on the Rights of Persons with Disabilities.
Our experience of the hearing
For two observers (Beth, a social work student, and Katy, a law student) joining a remote hearing was a new experience:
“It was easy to gain access – via MS Teams – but it did feel a little surreal, joining court from my living room” (Beth Williams)
“Despite requesting access only one hour prior to the beginning of the hearing, I received a link and Transparency Order very quickly. It was definitely a strange experience watching a court hearing happen on a video call platform.” (Katy Dobie)
The hearing opened, as usual, with the judge ensuring that observers had received and understood the Transparency Order (information he repeated at intervals during the hearing as successive people joined). He also let everyone know that, at Barbara’s request, he’d spoken with her earlier that morning and had just sent a note about the meeting to all the representatives. We weren’t told what had been said in that meeting
The applicant Local Authority was represented by Brett Davies. Barbara was represented by Joseph O’Brien (via her Accredited Legal Representative). John was represented by Ben McCormack. Others in court included Barbara’s son, her social worker, some solicitors and (at times) Barbara and John themselves. Although Barbara did not formally attend court, it became clear later in the hearing that she and (it seemed more often) John were observing much of the hearing on a tablet in a room at the care home. Neither of them spoke in court.
It was evident from the outset that most of the hearing would be devoted to questioning Dr Q about his reports – but it turned out he was not available until midday. This gave some time for Brett Davies to explain the background to the case (summarised above). The task of the court over the next three days, he said, was to consider the evidence of Dr Q, provided over four separate reports, and to determine whether Barbara has capacity to make her own decisions in key areas of her life. He added that it was a “troubling feature” of the hearing that it was starting some ten months after the initial application to the court. During that time Barbara and John have been subject to supervision and monitoring and denied opportunities for intimacy on the grounds that “there is reason to believe” (s.49 MCA) that Barbara lacks capacity to engage in sexual relations.
The parties were in agreement that Barbara has dementia and that this constitutes an impairment in the functioning of her mind or brain for the purposes of s. 2(1) MCA 2005. The final report from Dr Q (which public observers have not seen) claims that this impairment – he diagnoses, specifically, frontal lobe dementia – causes Barbara to be unable to understand, retain, and weigh information relevant to all the decisions he was asked to consider. But there was a question mark over his report from the outset:
“It isn’t clear from Dr Q’s reports what relevant information was shared with Barbara and what it is that he says she hasn’t been able to understand, or retain, or use and weigh in relation to that information.” (Counsel for the Local Authority)
Dr Q’s evidence in chief, in response to questioning from counsel for the Local Authority, was that Barbara (now) lacks capacity “in all areas”. (This contrasts with earlier reports, especially the report he made in June 2020.) He said “her deficits are markedly obvious” and described her responses to him as “dismissive,” “glib”, “fatuous” and “superficial”, saying that these responses were “typical of frontal lobe dementia”.
Dr Q seemed anxious to convey that these descriptions were not intended to be harsh judgments about Barbara’s behaviour. He kept emphasising that “she’s not deliberately trying to thwart me – it’s her underlying impairment”. He repeatedly asserted that Barbara wasn’t being deliberately “rude” or “difficult”: he explained that she “can’t help it” – all of which served only to underscore how challenging he had found his attempts to engage with her.
He’d found it hard to pursue lines of questioning because he “met with a wall on her part”. At one point he said that in trying to extract evidence of her ability to understand, retain or weigh information he “ran the real risk of her saying: ‘this interview is over. Please leave now’”.
When the judge tried to “drill down” into what efforts he had made to assess her understanding of specific relevant information, for example about how to protect against sexually transmitted diseases, Dr Q sounded exasperated:
Dr Q attributed Barbara’s sexual interest in John as due to “disinhibition”. Ben McCormack, as counsel for John, addressed this head on:
I did not hear any answer from Dr Q – only a suggestion that her capacity would need to be reassessed anew every time she wanted to knock on John’s bedroom door.
All of us, as public observers, were baffled and dismayed by Dr Q’s evidence.
“I found it very difficult to follow the process that Dr Q had conducted and I didn’t see any evidence that each decision was systematically interrogated and reported on for the court, nor any clear account of how the process had been attempted and why it had stalled. I found myself thinking ‘He might well be right about P’s capacity – but he can’t account for why he might be right’. He couldn’t show his workings out, in other words. I felt a bit discombobulated by this – a consultant psychiatrist, expert witness, must surely have followed the fairly systematic MCA process of trying to establish whether P has capacity for each individual decision? I kept coming back to a sense that the presumption of capacity was not his starting point; rather, that the starting point was that P had dementia and, therefore, was unlikely to have capacity.” (Claire Martin)
Both Claire and I (Celia) – who have observed a range of other Court of Protection hearings – were also surprised and disheartened by how little information was taken into account about Barbara as a unique individual person with her own values, wishes, feelings – both before her dementia diagnosis and subsequently:
“At hearings I have attended previously, I’ve always left feeling that I have some sense of who P is: the way they liked to live their life (prior to any question of mental capacity), their values and wishes. I did not hear about P as a person during this hearing or in the evidence presented. I later became aware that P was observing some of the proceedings from the care home where she resided and wondered what she made of hearing that she had been ‘glib’, ‘superficial’, ‘fatuous’ and other such words. Of course, these descriptors are common psychiatric parlance when assessing someone’s mental state and not intended pejoratively – and they are especially common when talking about fronto-temporal dementia (which was P’s diagnosis). I simply felt for P if she were hearing these words about her, in the absence of balancing descriptions of her as a whole person with a history and a life now.” (Claire Martin)
Under deft cross-examination by Joseph O’Brien (on the second day of the hearing), the deficiencies in Dr Q’s evidence were fully exposed, as he was taken through each of the four reports in turn. The following exchange between Joseph O’Brien and Dr Q (as close to verbatim as I can make it given that we’re not allowed to record the hearings) concerns the first of Dr Q’s reports, in February 2020.
The second report by Dr Q (based on seeing Barbara in May) was apparently much more detailed – and it also differed from the first report about three months earlier, by finding that Barbara did have capacity for some decisions, at least some of the time. In particular, Dr Q said in this second report that it was only when Barbara displayed disinhibited behaviour that she was unlikely to have capacity and on balance she had capacity the rest of the time. This was odd as Dr Q had earlier said that he would not expect a person with frontal lobe dementia (FLD) to regain capacity over time (i.e. between assessments conducted in February and then in May, with the assessment in May formally submitted to the court in a report in June).
The doctor replied with something to the effect that the two reports differed because Barbara behaved differently on the first and second occasions.
The third report (in August) was not based on having actually seen or assessed Barbara but drew on reports from her carers. Dr Q’s fourth report (at the end of September) was based on a meeting with her in person at the care home – relatively unusual given that capacity assessments during the pandemic are often done remotely. He found “a more global deterioration”:
Later, Joseph O’Brien emphasised the draconian effects of a finding that P lacks capacity to engage in sexual relations – in that she will then be prohibited from having sex altogether.
Dr Q comes perilously close, here, to disowning his own reports, in which case, as Coulson J has noted in a very different case (here) the “court cannot sensibly have any regard to them”.
After Dr Q left the (virtual) court – i.e. logged out– counsel for the Local Authority accepted that (contrary to the position he had taken initially and the claims made in his Position Statement):
“Dr Q’s evidence isn’t sufficient to make a final declaration of P’s capacity under s.15 MCA 2005 because of the failure of Dr Q to explore the relevant information for each of the decisions to be made, and to record that in his report, and to say whether it was specifically a problem with understanding, retaining or weighing. His oral statements have not been able adequately to supplement his written report. There are lessons to be learnt here. We are of the view that we need a further expert opinion”.
Nobody disagreed. In considering expert evidence on capacity, as Alex Ruck Keene has highlighted, “what carries weight is the reasoning, not the conclusion” (Lord Prosser in Dingley v Chief Constable, Strathclyde Police 1998 SC 548, 604, cited by Alex Ruck Keene here)
The judge and three barristers were fairly circumspect in the public context of the courtroom in their reflections on Dr Q’s evidence, saying simply that he “hadn’t quite lived up to expectation” and that his evidence was “not up to the mark”. One commented: “We anticipated a more comprehensive report, more compliant with the MCA 2005”.
The observers, direct messaging between ourselves during the hearing, were more forthright in our views of Dr Q’s evidence as he was being questioned. “It’s my first time hearing expert evidence, but it feels like he’s done a poor job in his reporting”, commented Katy Dobia. “Yes, it’s really scary that someone in his position cannot provide clear coherent evidence” (Beth Williams). Both students expanded on this when I invited them to contribute to this blog.
“When the cross-questioning started, it quickly became quite apparent that the expert who’d assessed Barbara wasn’t able to answer the questions coherently. This made me feel quite uncomfortable, as I believe – like many people – I would put my trust in someone who had the authority and power that this doctor had to determine someone’s life. This really opened my eyes to the complexities of the Mental Capacity Act (2005) and how on paper it can appear easy to understand, yet in reality it can be extremely complex to ensure the decisions are being made to enhance the individual’s life rather than limit it.” (Beth Williams)
“Listening to my first CoP hearing was such an insightful experience, but not exactly in the way I expected it to be. Having researched expert evidence and discussed it in a classroom context, I was shocked to see at first-hand how it can be more detrimental to a case than it may be helpful, if not diligently conducted. One of the main things that I found took me by surprise was the contradictory statements which the expert had made. He initially mentioned how Barbara’s condition would deteriorate and that there may be a stage of ‘plateauing’ or a ‘halt’ in deterioration but there would never be improvement. But under cross examination, it was pointed out that he’d reported that Barbara had not had capacity in February but that she had got capacity (for some things) in May – which suggested she’d actually improved by the time of their second interaction. It was extremely significant to point out this gap as it was largely contradictory to his original statement regarding Barbara’s deteriorating condition. I was reassured to see that the court did not accept that this expert’s evidence was sufficient to rebut the presumption of capacity. Counsel for John made a very important point in the hearing: ‘The presumption that Barbara has capacity to make her own decisions is as important a presumption as the presumption of innocence in criminal trials’. While listening in on what the expert had to say about Barbara’s capacity to consent to sexual relations in particular, my fear was that she would be deprived of the right to make her own decisions about her personal life on the basis of poor quality evidence. I was so relieved that didn’t happen. It does give me some faith in the Court of Protection!” (Katy Dobia)
As an NHS Consultant Clinical Psychologist working with older people, Claire Martin reflects movingly on what this means for the person at the centre of the case.
“I felt very sad at the end of the proceedings. Since the end of 2019 Barbara has been (consistently) expressing, verbally and through her actions, wishes to live and have sexual relations with the companion she has met in the care home. She has been waiting almost a year now for these issues about her life to be determined. At the same time, I am mindful of the law in relation to lack of capacity and sexual relations. If sexual acts were allowed to take place in the home, without a determination of capacity, this could constitute assault or rape. Care home staff are often in invidious positions – trying to offer person-centred care whilst also having to police people’s actions. So, over all I felt very sad for Barbara, and for those caring for her who will need to walk the tightrope of her care before the case is heard again in January 2021. We must not forget that this is a woman in her 60s, whose dementia is becoming worse and time is of the essence for her to potentially be allowed to live a life she wants to live.” (Claire Martin)
Understanding the Problems and Moving forward
The deficiencies of this expert report, and Dr Q’s inability to ‘plug the gaps’ in his oral evidence, clearly have negative consequences for Barbara, for her carers and for John – who has already had a visit from the police warning him about the criminal sanctions attached to sexual relations with someone who is unable to consent to them.
Although the judge commented that “Barbara clearly enjoys kisses and cuddles and it would be a shame if the regime in place were to prevent her from any form of affectionate contact with him”, Ben McCormack (as counsel for John) was clear that the Sexual Offences Act 2003
“sets a low threshold for an offence to be committed, so once the court makes an interim decision that P may lack capacity to engage in sexual relations, one needs to be very careful about permitting anything that could be seen as constituting sexual touch.”
This raises, as Joseph O’Brien said, “a question of interference with my client’s [Barbara’s] Article 8 rights, and with Mr McCormack’s client’s [John’s] Article 8 rights, but there’s no answer to the Sexual Offences Act.”
Barbara and John now have their relationship “on hold” until mid-January 2021, when a new (carefully selected) expert will give their assessment of Barbara’s capacity to consent to sex (and marriage) and to make her own decision about residence, care and other important aspects of her life. Only after this new expert evidence has been submitted and evaluated will the court finally be able to make some decisions on these matters.
The deficiencies of the expert evidence in this case meant that a court sat for three days – involving a Tier 3 judge, solicitors, barristers, care staff, a social worker, and others – without being able to make a declaration on the issue upon which the court’s judgment was needed. Admittedly some of the work done in preparation for this hearing can be recycled for the next hearing (the Position Statements for example are unlikely to need rewriting from scratch), but nonetheless this was effectively three wasted days in court. In addition to the harm caused to Barbara and John, this is a waste of public money to the tune of at least a five-figure sum: some lawyers (not associated with this hearing) from whom I asked for ball-park figures estimated in excess of £25,000.
All three legal representatives in court hoped that the judge would be minded to make a short interim judgment about what had gone wrong and how expert witnesses should properly use the information relevant to decision-making and include, in their evidence, a discussion of how they determined that P has, or lacks, capacity through the prism of P’s ability to understand, use and weigh that information. “It’s a problem that we see not infrequently” said Brett Davies, “and it’s a point that could be made to inform practice on a wider scale”. “The opportunity to teach lessons for others can be taken where appropriate,” said Ben McCormack, suggesting that the judge might like help with crafting an interim judgment in the form of further submissions from counsel setting out the expectations the court has of expert witnesses.
I (Celia) have watched dozens of expert witnesses give evidence in the Court of Protection and I have never seen anything remotely like what happened in this hearing. Some have been very impressive, and many are very good. I assumed, until Joseph O’Brien said otherwise, that Dr Q was simply bad at his job, but apparently not: “he’s an expert that lots of solicitors use, and the courts use, and he’s one of those experts who’s willingly gone into care homes to produce the best possible evidence for the courts”. This, said Joseph O’Brien, was “my first experience of Dr Q not living up to the mark, as it were”. The problem seems to be that, as he said himself, he ran into a “brick wall” of cooperation in trying to get this particular P to engage with him. Dr Q was clear that this wasn’t her fault (her behaviour towards him “is a manifestation of the disorder itself”), but also that it wasn’t his fault either. Recognising that he was struggling with his evidence, and as he was progressively brought to acknowledge its failings, he came several times close to apologising to the court:
The interim judgment will perhaps address the issue of what’s expected of experts when they run into this kind of “brick wall of cooperation”. How should they proceed? What evidence should they provide of their efforts to support P’s engagement? We await the interim judgment with interest.
The barristers in court also displayed some concern about the way in which public criticism might alienate people who might otherwise be willing to act as expert witnesses: “we need to hold close our experts in the Court of Protection – there aren’t that many of them” (Ben McCormack). It is also my experience as a public observer that there is a limited pool of expert witnesses in the court: I keep seeing the same ones over and over again (see my tweet about this here and the very interesting thread that resulted in which lawyers engaged with this issue).
Joseph O’Brien suggested that “the crippling factors” limiting the pool of expert witnesses are “the nature of the work, the remuneration that’s paid, and the intensity of what’s expected in court.” These concerns were also identified by the President’s Expert Witness Working Group Symposium (see the report by Malvika Jaganmohan here), at which participants identified shortages of expert witnesses as due to poor remuneration (also identified as a problem by an anonymous expert witness here), pension tax implications, lack of peer support, lack of feedback from the court, anxiety about media coverage, fear of rough treatment from cross-examining lawyers, and reputational damage.
We end this blog post by recording a moment in court which felt very appropriate and fitted to the person-centred ethos and fundamental principles of the Court of Protection. After accepting that “the court cannot be asked to make a final declaration on the basis of the expert evidence provided”, Mr Justice Poole displayed his awareness of the effects of this upon Barbara – who may or may not have been listening in to the hearing at the time (the tablet had been left connected during the whole hearing, but with microphone and video turned off). I remembered as he spoke that he’d had a conversation with her that morning, before the hearing began.
Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She tweets @kitzingercelia
Claire Martin is Consultant Clinical Psychologist. Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust, Older People’s Clinical Psychology Department, Gateshead.
Beth Williams has a first degree in Psychology and is currently studying for an MA in social work at University of Chester. She tweets @Bethwilliams_96
Katy Dobia is a student in the Law School at University of York.
 Celia observed the entire hearing from beginning to end. Claire observed almost everything (minus an hour on Monday and Tuesday mornings). Beth only observed Tuesday morning and Katy only Tuesday afternoon. We are grateful to Brett Davies for a clear and comprehensive introduction to a rather complex case which made it as easy as possible for observers to follow what was going on (and Celia sent her notes from this introduction to the other observers). Such introductions add a great deal of practical support for the principle of transparency in the Court of Protection. We are also grateful to the court for releasing the Position Statements for all parties which are again hugely helpful in understanding the legal arguments involved – most especially the very detailed 60-paragraph submission from Joseph O’Brien, which was a legal education in itself.