How long can you keep trying to rebut the presumption of capacity?

By Celia Kitzinger, 3rd December 2021

It’s a fundamental principle of the Mental Capacity Act 2005 that “A person must be assumed to have capacity unless it is established that he lacks capacity” (1(2))

Likewise, “A person is not to be treated as unable to make a decision merely because he makes an unwise decision” (1(4)).

The person at the centre of this case, HC, wants to make the (according to others) “unwise decision” to live at home, instead of in the care home where she is currently deprived of her liberty. 

The case (COP 13738484) is a s21A challenge to the standard authorisation granted by the local authority[1].  These s21A challenges are among the most common hearings in the Court of Protection and we’ve published lots of blog posts about them (for example this post, which also provides a detailed explanation of the law in relation to deprivation of liberty and s.21A challenges). 

This application challenges both the capacity requirement and the best interests requirement – but the issue for this hearing before District Judge Searl (via telephone from Newcastle on 22nd November 2021) was only about capacity. 

Opening the hearing

In my experience, judges presiding over telephone hearings in regional courts are responsible for joining all the participants to the conference call for the hearing. This means first-time observers can be quite startled to pick up the phone and be told “It’s Judge X here”. I’m familiar with this procedure and was undaunted when the judge phoned me about 8 minutes before the listed time for the hearing to begin (2.00 pm). Instead of immediately joining others to the hearing, however, she raised a “slight concern” about my presence as observer. She checked that I’d been sent the position statements so that I could follow the case and also that was okay to introduce me without my title (“Professor”) – I think with the intention of making me sound less intimidating to HC who, she said, would also be attending the hearing.  I appreciated her concerns.

The judge then joined the other participants to the conference call one by one, starting with the applicant, counsel for HC, Megan Crowther of Parklane Plowden.  She checked with Megan Crowther that HC had been made aware that there would be an observer today. This was confirmed and seemed unproblematic.  

The other people joined to the call were HC and her Relevant Person’s Representative (RPR), counsel for the respondent local authority, Richard Borrett of Kings Chambers, and the two instructing solicitors (whose names I didn’t capture).

The hearing actually began at nearly 2.10 – and although it was listed for an hour, it continued until 15.23 – an extension facilitated by the subsequent hearing before DJ Searl having been vacated.

The judge explained that she’d not previously heard this case. It had been before another judge, District Judge Malik, but had come before her now as a consequence of an urgent application from the Official Solicitor to hear the case before the next listed hearing with DJ Malik, which had been scheduled for 9th February 2022.

The urgent issue before the court, said the judge, is “to put it bluntly, whether the presumption of capacity stands, or whether – as the local authority seeks – there should be instruction of a further expert[2].

HC and her decision-making capacity

HC did not speak during the hearing (and since it was a telephone hearing, I didn’t see her either).  I learnt that she’s in her early 40s and deprived of her liberty in a care home. 

HC has been living at the care home since 31st December 2020, when she was discharged there from hospital. 

She wants to go home.

The basis for continuing to deprive her of her liberty, and keeping her in the care home against her wishes, has been that there is reason to believe that she lacks capacity to make a decision for herself about where to live and receive care (based on a report from a treating clinician back in January 2021) and that being cared for in the care home is in her best interests.

Now, however, there are three reports from an expert which say that HC does have capacity to make her own decisions about residence and care.

Her s.21A application was submitted at the beginning of April 2021 and the court ordered expert evidence as to HC’s capacity from a jointly-instructed expert, Dr Laurence Mynors-Wallis, a consultant general adult psychiatrist. 

All three of his reports (submitted in June, September and October this year) conclude that HC has the capacity to make decisions about her care and residence.

But, said Richard Borrett, “The local authority doesn’t accept that.  The local authority’s position is that’s not correct.”

The local authority’s position

Although all three expert reports found that HC has capacity to make her own decisions about care and residence, counsel for the local authority pointed to “inconsistencies” between them which, he said, undermine this conclusion. 

In his first report (in June), the expert concluded that HC had capacity in relation to litigation, residence and care.  He had not seen HC’s medical or care records, and conducted an Addenbrookes Cognitive Examination on which HC scored 91/100, suggesting that “HC doesn’t have significant cognitive impairment”.  He took it that HC did not have an impairment or disturbance in the functioning of mind or brain, and was satisfied that she could understand, retain, weigh and communicate in relation to all three areas.

The expert’s second report (in September) was filed after examining HC’s medical records, at which point he accepted that she does have “an impairment of, or a disturbance in the functioning of, the mind or brain” (s. 2(1) Mental Capacity Act [MCA] 2005). She has Alcohol Dependence Syndrome, which – along with some falls – has led to some cognitive deficits and has also been diagnosed with Emotionally Unstable Personality Disorder (see the blog post by Keir Harding for a discussion of the contested nature of this diagnosis).   This means, says counsel for the local authority, that HC “does meet the criteria for the first (diagnostic) stage of the MCA 2005”. But the expert opinion remained that, despite these diagnoses, she retains decision-making capacity in all the relevant areas.

In October, the expert produced a third report based on another interview with HC.  Again accepting that HC meets the “diagnostic” criteria, he found that she lacked capacity to conduct litigation “because she would find it difficult to weigh up the information in an emotionally charged (from her perspective) hearing”.  But he found that, despite underestimating the difficulties she has in managing independently, she has capacity in relation to care and residence.

Counsel for the local authority pointed to “a distinction between these reports from someone who has assessed her on a few occasions and the assessments of those treating HC over long periods of times”.  He added, diplomatically, that “this is not a criticism”, since “it can be more difficult to conduct these assessments over a comparatively short period”.  He then quoted from the treating team, including a consultant clinical neuropsychologist, an occupational therapist and a psychiatric nurse.  The latter states that “She has an acquired brain injury related to falls/alcohol misuse which has impaired her cognitively and capacity to make decisions about her care and accommodation”.

He argued that the expert underestimated the extent of HC’s impairment and that the things she is quoted as saying in his own reports undermine his conclusions.  

For example, in the expert report, HC is quoted as saying that there are no disadvantages to being in her own home, and no advantages to remaining in the care home.  This (he says) undermines the expert’s conclusion that HC can weigh up the advantages and disadvantages of different places to live.

Another example: the expert report says HC “underestimates” her care needs, but quotes her as saying “I don’t need looking after. I don’t need to be kept safe”.  This is not (he says) evidence that she “underestimates” her needs – rather it displays that she simply does not accept that she needs assistance at all.  In most cases (he says) that would lead to a conclusion that she lacks capacity.  It would be different, if HC were saying ‘I recognise I might struggle without support, but I want to go home.

Furthermore (he says) it’s illogical to reach the conclusion that HC lacks litigation capacity because she would find it difficult to weigh up information in the emotionally charged context of a court hearing when making decisions about care and residence is also a highly emotionally charged matter for HC.

In sum, there remains a significant dispute as to HC’s capacity, despite the instruction of a joint expert.  

The local authority did not ask the judge to make a decision today as to whether or not HC has capacity in the relevant domains, but to appoint another expert – ideally the treating clinician (who has already written a few weeks earlier, in a document before the court, that HC lacks capacity to make decisions about care and residence) or – if the judge was not with him on that – then one of two other identified named experts. All three, he said, would be able to report back in time for the January hearing.

The judge asked counsel:

While I appreciate the position of the local authority, it seems to me I could take the self-same points you’ve identified and approach them as falling within the scope of making unwise decisions.”

The judge referred to counsel’s point that HC said she would accept “anything if they let me go home”.  To the local authority, that indicates “she is saying the ‘right thing’” rather than showing “a genuine understanding of her needs” and an ability to understand and weigh information.  To the judge, “I could interpret this as a tactical decision to achieve an outcome”.  

The judge reminded counsel that she had to start with a presumption of capacity and that a decision “may be manifestly unwise and be very far from what we would accept in our own decision-making” without being incapacitous. 

Counsel for the local authority urged the judge not to accept the conclusions of the expert report:

It doesn’t mean as soon as an expert makes a statement of capacity that’s the end of the matter. It can still be a live issue.  Our submission is that the issue of capacity isn’t sufficiently fleshed out to say whether or not the presumption of capacity is rebutted”. 

He pointed again to the evidence from the treating team: that HC has “significant deficits”, that her “autobiographical recall is significantly impaired”, that there has been “deterioration in global intellectual functioning and executive functioning”.  He was surprised, he said, not to see in Dr Mynors-Wallis’ expert report an analysis of the “mismatch” between the reports from the treating team, and his own assessments.

Since (said counsel) the issue between the parties as to whether or not HC has capacity to make her own decision about where to live is not resolved by the expert report, “the way forward has to be another report”.  He cited the case of Bulic v Harwoods and others [2012] EWCH 3657 [QB] to support his claim that a party may, in appropriate circumstances, be given permission to rely on its own expert, after the instruction of a joint expert. (That’s not a Court of Protection case – it’s a dispute about the cause of engine failure in Mr Bulic’s Jaguar vehicle.)

In terms of who might be asked to produce that report, he acknowledged that, in the view of the Official Solicitor, “the treating clinician is too close, and so it would be inappropriate”. 

Yes”, said the judge, “you have a difficult hill to climb to convince me otherwise.  The Official Solicitor’s position on that is my position”. 

The Official Solicitor’s position

Speaking for HC via the Official Solicitor, Megan Crowther addressed the judge: 

We invite you to conclude matters today.  There is an expert report from a joint expert who has considered the matter of HC’s capacity at length, has met her twice over a four-month period, and has produced extensive medical reports. The reports do not differ in their conclusions that HC has capacity to make decisions about care and residence.  At the time of the first report, he had not seen the medical notes and he says there is “insufficient evidence” that the diagnostic test is met – but, in any case, there was also no evidence of her inability to make the relevant decisions. In the second report he quite candidly says this is a complicated diagnosis and he would like to do another functional test.  After another functional assessment, in the final report, he still formed the conclusion that the presumption of capacity is not rebutted. This begs the question as to what can really come from yet another capacity assessment.  There needs to be a line drawn at some point.  HC’s capacity was put in question, and despite that he still says she has capacity for this decision.  The report doesn’t say it’s clear cut.  He says there are some problems with insight, that she under-estimates her difficulties  and downplays her past difficulties with alcohol.  But these are not so extreme that she’s unable to understand, retain and weigh up the relevant information.  The presumption of capacity must prevail in these circumstances.  The parties have a disagreement, but the process required now is not for evidence upon evidence upon evidence to be obtained until one party agrees with the other.  Sometimes that just doesn’t happen.  It’s a  matter for the court. The court decides.”

Counsel addressed some of the concerns raised by the local authority, pointing out that “many concerns are quite out of date” and that the documentation referred to was in any case already considered by the expert in coming to his view. There is nothing in the submissions from the local authority that is “new or surprising that the independent expert hasn’t considered already”.

Requiring HC to undergo a new capacity assessment by a different expert is not a proportionate use of funds or time, given that an independent opinion has been obtained and is well reasoned.  

There comes a time when, though the parties are not in agreement, the court must make a decision.  That is where we are today.” 

Judgment

District Judge Searl summarised the issue before the court and the chronology of events.  She said that, having read all three reports, and the evidence of the treating clinician in the hearing bundle updated over the weekend, her view was that challenges from the local authority “have to be read against the conclusions of Dr Mynors-Wallis being based firmly in the presumption of capacity”.  This is, she said, “the correct approach within the Act”. 

The judge said that when producing his first report, “Dr Mynors-Wallis did not have evidence of a diagnosis, or of lack of capacity… and while it’s correct to say he revised his position, that was on the basis of evidence placed before him rebutting the presumption of capacity”. 

Concluding that the revision of his views was “evidence-based”, District Judge Searl said:

The court can be satisfied Dr Mynors-Wallis has properly considered HC’s neuropsychological assessment, the diagnosis of Emotionally Unstable Personality Disorder and the medical records detailing the hospital stay.  And on that basis, he revised his opinion and undertook further functional assessment.  On the basis of the full records available to him he came to the conclusion, on balance, that while HC underestimates her needs, this does not equate to a lack of capacity.”

The judge did not accede to the request to appoint another expert and reminded herself of the ‘overriding objective to deal justly and proportionately” with this case “allocating to a matter the appropriate share of the court’s resources”. 

She concluded: “I accept that HC has capacity to make decisions about care and residence and accordingly my jurisdiction in this matter ends.”

Comment

In the vast majority of hearings I’ve observed, there is no disagreement between the parties that P lacks capacity to make the relevant decisions. Where there is such disagreement, an expert report usually resolves the matter. 

Sometimes an expert report is deemed inadequate and a new expert is appointed, as here: When Expert Evidence Fails.  But in that case the expert was first invited to give oral evidence in court, and was cross examined, before the opinion of a new expert was sought. 

I’m not sure why the local authority in this case was arguing for further expert evidence from a new expert, rather than for a contested hearing at a future date, at which the existing expert would have the opportunity to give evidence and be available for cross-questioning to have that evidence tested – along with evidence from members of the treating team.  

In the case of Re PH [2011] EWCOP 1704, which also concerned an application under s.21A as to whether a person had capacity to decide where to reside and receive care, the case was transferred by the District Judge to the Royal Courts of Justice to be heard by a High Court Judge. 

Mr Justice Baker made an interim declaration that PH lacked the relevant capacity and gave permission to the parties to instruct an independent psychiatrist. That psychiatrist, Dr Hugh Rickards, reported that PH did have capacity to make decisions about residence and care.

In his judgment, Baker J says:

As this was contrary to the view held by the medical professionals responsible for treating PH, it became clear that a contested hearing as to capacity would be required.”

There was then a 2-day hearing during which the judge heard from the expert witness (Dr Rickards) who had reported that PH did have the relevant capacity, and also from the treating team (anonymised as Drs, A, B, and C, and the allocated social worker, D) who did not believe that the expert report was correct.  (PH’s partner also gave evidence, saying that he did have capacity to decide to return home.)

Baker J concluded:

Having considered the evidence of these witnesses and the other relevant documents drawn to my attention in the papers, I am in no doubt that PH lacks the capacity to make decisions concerning his future residence and care. (para. 1)

I acknowledge the expertise of Dr Rickards and find his approach to his assessment to have been appropriately objective and professional but I was struck by the fact that his report, and the answers to the supplementary questions posed by the other parties, seemed somewhat superficial. This may have been a reflection of the fact that he was basing his opinion on a single interview of ninety minutes. It would be an over­simplification to describe it as a snapshot but it is, to my mind, a disadvantage that the assessment was based on a single visit. (para. 2)

Although neither Dr A nor Dr B nor Dr C has a curriculum vitae as academically distinguished as Dr Rickards, in my view they each have obvious and valuable expertise in HD. Interestingly, each of them brings a slightly different type of expertise to the case – Dr A as a consultant psychiatrist specialising in old age and dementia, Dr. B as a GP but with a unique depth of expertise in HD through his years working at Y Court, and Dr C, with his expertise in mental capacity assessment and interest in medico-legal matters. With respect to Dr Rickards, I consider that the overall expertise of Doctors A, B and C, coupled with their much greater experience of PH as a patient, justifies the court attaching greater weight to their combined views in this case. In addition, D, although not as experienced as the clinicians, was to my mind a manifestly fair and perceptive witness whose opinion demands very great respect. (para. 58)

This judgment underscores the point that the view of an expert witness is not final.  It is, as both parties acknowledged in the case of HC, up to the judge to make the final determination as to whether or not a person has capacity.

In assessing the question of capacity:

.. clearly, the opinion of an independently-instructed expert will be likely to be of very considerable importance, but in many cases the evidence of other clinicians and professionals who have experience of treating and working with P will be just as important and in some cases more important. ” (para. 16 (xiii))

But in the case I’m reporting on here, the judge relied only on the documentation before the court, and did not have the opportunity to hear oral evidence from the expert witness, or from the professionals involved in caring for HC, or to have everyone’s evidence tested in court.  

I don’t know if the outcome would have been different if the expert and treating team had been asked to give evidence in court, but I would have felt that the judgment was based on firmer foundations.

On the other hand, I bear in mind what DJ Searl said about the need to deal “proportionately” with this case,  “allocating to a matter the appropriate share of the court’s resources”. 

Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She tweets @KitzingerCelia@gmail.com


[1] I have not received a written transparency order but was told verbally by the judge that one existed, or would exist, and (in response to my specific enquiry) that I could not name the local authority because it would risk identifying HC’s  location.

[2] We are not permitted to audio-record court hearings.  Quotations are as accurate as I can make them based on notes taken at the time, but are unlikely to be verbatim.

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