By Eleanor Tallon, 31st August 2022
As an experienced Best Interests Assessor (practising within the legal framework of the Deprivation of Liberty Safeguards), I have an avid interest in the Open Justice Court of Protection Project which is aligned with my passion to promote human rights.
I find that both reading the reflective blogs and participating as an observer in the Court of Protection, is highly beneficial in terms of my continued professional development. This relates both to my ongoing work as a Best Interests Assessor (BIA) and in my current part-time role as a private Case Manager, working with clients with acquired brain injury, for whom I have also been instructed to complete private mental capacity assessments.
Having a free afternoon (which happens quite rarely as a working lone parent!), I sought to find a relevant hearing to observe which could further enhance my knowledge, particularly around welfare applications relating to Deprivation of Liberty (DoL) in the community. Such understanding and application will be of paramount importance to those BIAs, like myself, who wish to transition into the new statutory role of ‘Approved Mental Capacity Professional’ (AMCP).
The AMCP role will supersede the BIA role with enhanced functions, only completing the more complex reviews of DoL and in some cases, making a final decision on lawful authorisation.
The AMCP role will come into effect when the Deprivation of Liberty Safeguards (DoLS) is replaced by the Liberty Protection Safeguards (LPS) later next year, and unlike DoLS (which can only be applied to care home and hospital settings), LPS will also authorise Deprivation of Liberty (DoL) in the community.
Therefore, the LPS scheme is designed to take some of the bureaucratic burden away from the Court of Protection (CoP), which is presently the only supervisory body able to authorise DoL in the community.
Under LPS, there will no longer be the generic need to apply to the court for a community DoL authorisation, certainly for non-contentious cases which are currently reviewed by a judge under the streamlined ‘Re X’ procedure using the form COPDOL11 (though significant objections from P will still require welfare applications to be made for judicial scrutiny).
So, it seems that the AMCP will have a similar role to the judge when considering DoL in the community, through the LPS framework.
With all of this in mind, I chose to observe a hearing listed for Friday 19th August 2022 (COP 13777310) listed like this:
This wasn’t listed as a section 21A appeal (under DoLS), so I assumed it was related to an adult who lived in the community. I felt that the content could be pertinent to my learning based on the details highlighted in the listing:
- Where P should live.
- Healthcare.
- Capacity to marry or consent to sexual relations.
- Deprivation of Liberty in relation to care and residence.
Given the wide scope of these decisions, I was under no illusion that all of this could be discussed within the allocated time frame (one hour). Yet I hadn’t quite predicted the stumbling blocks and professional contentions that transpired, or the dismay of the judge who was clearly frustrated at the miscommunications between parties.
Unfortunately, there is little information to provide a background to this case, as the parties had not provided position statements to the court and no summary of the case was given.
The hearing lasted just over half an hour and what I observed was less focused on P, and more indicative of an acrimonious situation between the professionals, who disagreed about the use of specific experts to conduct the capacity assessments required.
So rather than derive learning about community DoL, I have chosen to focus this blog on my reflections around the issues raised, such as the impact of professional miscommunication and the quandary around which expert is best placed to assess the protected party’s capacity.
I will also reference the wider debate around choosing the right professional to assess capacity, within Court of Protection and beyond.
Accessing Open Justice
I emailed Newcastle County Court on 18th August 2022 at 18.13 and received an automated response, followed by the transparency order at 10.30am on 19th August and a further email from the court clerk at 12.14 to confirm the hearing was scheduled for 14.00 and would be heard by phone.
Despite the prospect of a phone hearing (which I have attended before and felt it to be quite disorientating to follow), this still felt like a very positive start to open justice.
However, by 14.03 I hadn’t received a phone call and wondered whether the hearing had been delayed. I emailed and then phoned the court, with no response. I anticipated that I had been a little too optimistic about gaining access to this hearing, but then at 14.16 I received the call. I’ve since learnt that it’s not unusual for hearings to start late by 15 – 30 minutes and occasionally they are an hour or more later than listed.
The clerk checked who I was and then checked who else was on the line, but no one else was present at that point. I set my phone to mute and waited for the others to be admitted to the call.
Another person joined who I believe was one of the respondents and she stated that she was in her car (parked) and that the other respondent was due to join but was en route. The clerk said that the hearing would need to start as it was scheduled for 2pm and that the other respondent was not answering her phone.
The recording of the hearing began at 14.20 and the clerk went through the formalities.
The clerk listed all people attending as below (and I have tried to identify them by the information provided in the hearing, in addition to some personal research):
Ms Susan McKendry (Barrister, KBW Chambers- acting on behalf of the Applicant, the Local Authority) and her instructing Solicitor, Ms Alison Freeman.
Ms Natalia Levine (Barrister, St Johns Buildings- acting as Counsel for the protected party on behalf of the Official Solicitor)
Mr A (Local Authority Manager)
Ms Melanie Morley (Solicitor, BHP Law)
Ms. S (unknown)
Mr T (unknown)
Ms Eleanor Tallon (that’s me!)
At this point, Susan McKendry enquired as to who Eleanor Tallon (and one other person) were, stating “I’m bewildered as to who they are” (although quite coincidentally, I had recently worked alongside Susan delivering a seminar on the new Liberty Protections Safeguards legal framework, but it seemed she hadn’t recognised my name within this context).
The clerk explained the attendance of public observers and then went to collect the judge from chambers.
The Hearing- NCC (Local Authority) v LS & MA & MS before Her Honour Judge Matthews QC
The Judge began by addressing the issue that both the second and third respondents (MA and MS who were possibly family members of the protected party, LS), had been contacted by the clerk but neither was currently present on the call, and whether it was felt appropriate to continue. Counsel for the Applicant, Ms McKendry, highlighted that the Local Authority had also attempted to contact them and that they were given due notice about the hearing, therefore the consensus was to proceed. The judge checked with Counsel for LS, via the Official Solicitor, Natalia Levine.
Judge: Are you content to proceed Ms Levine?
Counsel for LS: Yes, content.
Ms McKendry, on behalf of the Applicant, then summarised why the hearing had been requested on an urgent basis, via an application made by ‘COP 9’ in August (this is the process followed when it is felt that an emergency court order is required to make a decision on the person’s welfare).
Counsel for the Applicant: The Local Authority had sought to request a section 49 report from the treating psychiatrist Dr B, who had been involved since proceedings began earlier last year.
(See a previous blog here for a useful insight into section 49 reports.)
Counsel for the Applicant: This is felt to be the best option (in terms of assessing LS’s capacity on the identified decisions) as Dr B was a key figure in the Multi- Disciplinary Team who had implemented the dynamic support plan which had been authorised by the Court. The care plan was updated in July and had been filed today, for approval on the current position.
Counsel for the Applicant then put forward that it would be prudent to ask Dr B to consider the decisions on care whilst he is treating LS, as well as gaining his analysis around LS’s capacity to engage in sexual relations.
Counsel for the Applicant: On the 4th July, an interim declaration was made that LS lacks capacity (for sexual relations) on the basis of a report by (previous psychiatrist) Dr L, completed some time ago. LS is now more active in his life. He has a girlfriend, so it is appropriate to have updated information on that issue. The Local Authority views Dr B as the most appropriate person to conduct that assessment.
Counsel for the Applicant then discussed that LS had been given a diagnosis by Dr B (this was not elaborated on) and that Mr A, who was the manager responsible for the Local Authority witness statement, had highlighted that LS has a positive relationship with Dr B.
Counsel for the Applicant: The Local Authority had attempted to provide an update report of the witness statement from Mr A, but this was not ready.
A verbal update regarding this report was offered, but the judge moved on to other queries.
Judge: I wonder why this matter is quite so urgent?
Counsel for the Applicant: The issue has been in discussion since June. The matter was listed with the draft COP 9.
The judge then again questioned why the matter was so urgent and with parties not being able to agree (on who should complete the reports), she asked why a decision was needed with such speed.
Counsel for the Applicant: Various discussions have been held between parties but there was no agreement.
Judge: I find this extremely disappointing. It doesn’t help the other side to not have matters set out in writing.
Counsel for the Applicant: My apologies.
Judge: I’m not agreeing that it can be dealt with. I don’t understand why it’s got into such a mess.
Counsel for the Applicant responded that the Local Authority had been very keen to update the support plan and had regarded Dr B’s views on LS’s capacity (to engage in sexual relations) as critical since June, which they had not yet had and so remains an issue.
Counsel for the Applicant: The urgency came from the fact that LS was previously assessed as lacking capacity on sexual relations (by Dr L), and he currently has a girlfriend, further to this he is not remaining in his flat for most of the time.
(The implication was that LS was being intimate with his girlfriend whilst lacking capacity to make the decision to do so.)
Counsel for LS via the Official Solicitor (Natalia Levine) then asked whether the court had received the ‘wishes and feelings’ statement from June this year. She went on to empathise with the court’s disappointment and described herself as a ‘fly in the ointment’ (an interesting idiom, and the term ‘spanner in the works’ sprang to my mind as possibly more appropriate regarding her disagreeing to the section 49 report which the LA had sought from Dr B).
Counsel for LS: I was not involved in this case until very recently and upon reading the bundle I was concerned for a number of reasons, that the section 49 report was not the correct route to go down regarding Dr B. The Local Authority was told of our concerns and further discussion was suggested. A round table meeting would have allowed full explanation as to why a different expert was sought.
Counsel for LS related that she had asked whether there could be any movement on the Local Authority’s position but there had been no response and no pre-hearing discussion.
Counsel for LS: The reason why I was concerned whether Dr B was the correct expert is because he known to engage with LS so well.
Counsel for LS went on to describe how LS does not typically engage with professionals positively and indicated that if Dr B was put in the position of assessing his capacity on the listed decisions (and potentially making a decision that LS lacks capacity) then this could impact on the therapeutic relationship that has been developed.
Counsel for LS: If you look at the ‘wishes and feelings’ statement from 28-06-22 LS’s response to Dr L’s report is quite negative. LS states ‘he called me a spacker.I f I saw him I would chin him. I would stand on his head. Why does he think I’m a horrible…’ (pause) I won’t say that word. If Dr B was asked to look at capacity for sex it may damage the relationship, they have.
This appears to be a relevant point, given that once a person is assessed as lacking capacity to engage in sexual relations, no decision can be taken on their behalf (by virtue of the ban in s.27(1)(b) MCA 2005) which effectively means the person cannot have sex without it being classed as a sexual offence and incriminating the other party involved.
Given the situation with LS, both with having a girlfriend and ‘him not being at home most of the time’ it is likely that an assessment of him lacking capacity for sex would have grave implications on his support plan and the likelihood of increased restrictions, for which he might hold Dr B responsible. This could then lead to a weakening in (what is presented as) one of few strengths in the professional network.
Counsel for LS: I have a duty to LS via the Official Solicitor and when looking at this case and best evidence, it struck me that this is similar to a case done with Kirklees (another Local Authority).
Counsel for LS proposed the use of an independent expert nominating the one who was involved in the aforementioned case, saying that the report provided was thought ‘exceptional’ by all the parties and the judge, and this reflected the expert’s approach to capacity and best interests, with knowledgeable attention to risk management and behavioural interventions.
Counsel for LS advocated that this independent expert could implement valuable recommendations on future pathways, reiterating that the report was the most helpful she had ever seen, and therefore she was requesting that the CV of the expert was considered.
Judge: I have nothing from the OS at all.
Counsel for LS: I apologise, that should have been sent.
The judge remarked on her disapproval on the lack of information and the lack of communication and agreement between the parties.
Judge: I am not a judge to avoid making a decision, but I am not making one on the hoof. This is disgraceful. Professionals should work together and have a round table meeting, especially with substantial disagreement on the option of an expert.
Counsel for LS: It was agreed at the last meeting that Dr B would be appropriate, but that was before I became involved. The alternative expert I have since proposed has not been considered. It is a shame we haven’t had the opportunity to discuss. It was made clear we are not in agreement with Dr B but the Local Authority had already issued a COP 9 hearing.
Judge: I won’t be making a decision today. I can’t consider your experts when it has not been agreed. This can be adjourned until next week. The parties should work together and not rush to court in a litigious way. It is not ready to be heard. I appreciate what the Local Authority say about urgency, but it is not as urgent as that. Ms Levine, you and Ms McKendry will talk.
Counsel for the Applicant: Since the principal objection to the treating psychiatrist being the expert, on two occasions emails were sent to request attendance at a pre-hearing discussion.
Judge: There are no documents on file or in the bundle. I am not apportioning blame but it shouldn’t happen in this way. Position statements are needed from each side. There should have been a round table meeting and pre-hearing discussions. Both parties are at fault. I will stand it down for you to talk and come back. Let the clerks know when you are ready.
The hearing terminated at 14.49.
Reflections on professional miscommunication
This hearing exemplifies a stark reminder of why good communication and dispute resolution is so important, not only to avoid protracting contentions which impact on the outcomes for P (who is at the heart of the disagreement), but also to avoid gratuitous use of court time and wasted costs.
As so candidly remarked by the judge, professionals should work together and if possible, resolve issues prior to the involvement of the Court of Protection, although of course certain complex matters cannot be addressed without judicial scrutiny.
Such matters would include whether a person is deprived of their liberty in the community, as this can only be authorised by the Court of Protection. This is set to change next year with the implementation of the LPS, but for now, the Court of Protection is the only option.
When it comes to the issue of a person’s capacity for sex, this appears to be an increasingly common issue before the court, possibly as a result of the Supreme Court ruling on JB and the revised capacity test for engaging in sex.
With LS (who I know so very little about), if he is assessed as lacking capacity to engage in sex (as he was some time ago by the previous psychiatrist), then consequently, he would require interventions that impede on his freedom to have sex with his girlfriend. This is a huge restriction on his liberty and privacy (triggering articles 5 and 8 under ECHR) and a support plan with restrictive interventions around sexual activity, would clearly need the oversight of the court to ensure necessity and proportionality, with recourse to legal appeal.
So ultimately, these are Court of Protection matters.
As the judge points out, the pre-hearing discussions and statements were essential to providing the necessary information required for her to decide on which expert to instruct. This would proactively move the case forward, as to gaining an updated assessment on LS’s capacity on his care needs, residence and to engage in sex (which seemed the most pressing concern).
Without a current determination on capacity to engage in sexual relations, it remains unclear on whether support is required to ensure LS’s welfare or whether he is at risk of sexual exploitation.
Reflections on who is best placed to assess P’s capacity
In terms of assessing capacity for sex, the relevant information that is required to be understood for a person to have capacity to engage in sexual relations was set down in the JB judgment (see previous blog here): understanding the mechanics of the act, risks of pregnancy (in heterosexual sex), risk of sexually transmitted diseases, benefits of contraception, and most notably an awareness that both partners must consent prior and during sexual relations (and this is where the emphasis lies with engaging in sex in an active sense, as opposed to consenting to sex which implies passivity).
The JB judgment also explicates the required change in the order of the ‘diagnostic’ and ‘functional’ tests under the MCA 2005.
The new MCA code of practice also details the same change, with a view to the functional test being carried out first (to avoid assumptions being made based on a mental impairment) and there is further emphasis on ‘supported decision making’, being the basis upon which any formal test of capacity is initiated.
Regarding LS, I understand the predicament that concerns his barrister, Ms Levine. If Dr B determines LS as lacking capacity to engage in sexual relations, he may respond in a similar way as he did to the previous psychiatrist who assessed him.
Yet given the positive relationship LS has with Dr B, I also understand the view taken by the Local Authority, that his involvement may hold advantages when considering his capacity on the various decisions, on the basis that he may not engage as well (or at all) with an unfamiliar professional.
I would hope that Dr B and other professionals involved, have already made the necessary attempts to support LS to understand the relevant information and make his own decision to engage in sex/ decide on his residence and support needs. If there was a reasonable belief to doubt capacity following all practicable steps taken to support LS, a formal mental capacity assessment would then be required (this could be requested from an independent expert if it was felt that a breakdown in the relationship with Dr B could not be avoided).
I wonder whether a co-productive approach was taken within the previous assessment on sexual relations by Dr L, to which LS appeared most aggrieved by (stating he would ‘chin’ Dr L if he saw him). Was the outcome of that assessment challenged on behalf of LS? Was it explored as to whether LS was provided with appropriate education and relevant information to make his own decision, thus negating the need for interventions in his private sexual life?
The provision of appropriate support and information when assessing capacity is a crucial point, and an area which has received critique from judges when it is lacking (see here). Specific guidance around what not to do, was developed by Mr Justice Poole, in his judgement, AMDC v AG & Anor (2020) as captured within this commentary.
In my experience, at times I have seen professionals jump too quickly into a formal assessment of capacity without spending time to clarify with P the information and the risks they need to understand in order to make their own decision – which can result in a very disempowering outcome. The importance of this is reiterated loudly by the new MCA Code of Practice.
The wider debate on choosing the right professional to assess capacity (outside of this hearing)
During my career as a Best Interests Assessor, I have completed many mental capacity assessments on support and residence, and as a Social Worker I was also well versed in the same. Co-production and enablement are core values within Social Work practice, so my approach with assessing capacity has always reflected this.
Having worked as a Case Manager in the private sector, I now recognise that there is a tendency to instruct doctors to complete mental capacity assessments, and for certain decisions this would be most fitting, yet for decisions around daily support needs, I think there is often an added value in choosing a Social Worker or Occupational Therapist (who has clinical skills and training around the specific mental impairment impacting on the decision).
When considering the functional test and the relevant information around the support options proposed, this is likely to be best communicated to P by a relevant practitioner with practical knowledge of the scope of available options (including those which are least restrictive, such as the use of assistive technology rather than direct supervision).
Depending on the decision and P’s individual needs, the most appropriate professional will not always be a psychiatrist.
Section 49 reports and COP3 (capacity assessments) are by no means limited to psychologists or psychiatrists: social workers, nurses and occupational therapists are included in the list of professionals who can complete these reports, and provided that they have the necessary experience, it seems a wasted opportunity not to employ these professionals, when the circumstances are suitable.
When looking at the Liberty Protection Safeguards, we see a distinct movement towards a range of professionals completing statutory capacity assessments, including Speech and Language Therapists who are often invaluable when assessing capacity for those with communication difficulties.
And as Mr Justice Poole reminds us ‘capacity assessments, including those prepared for the court, are not the sole domain of psychiatrists, as this is an ongoing, and unhelpful, myth’.
In LS’s case, the circumstances may determine best use of either Dr B or the expert proposed. For the latter, the key would be that the judge felt it necessary and proportionate to instruct an independent expert (of whichever discipline).
In any event, I hope that there is agreement between the parties to allow for LS to be assessed in a timely way and that the chosen assessor will make further conscientious efforts to enable LS to make his own decisions as far as possible, in the spirit of promoting his autonomy whilst protecting his welfare.
This careful balance of empowerment and protection is the guiding influence behind the MCA 2005 and all actions taken within its jurisdiction.
Future learning
Observing this hearing has been of significance for me, aiding a deeper reflection on some of the pitfalls within proceedings that can impact on the outcomes for P, most notably around professional miscommunication and when choosing the right professional to assess capacity.
However, I would like to observe more hearings with a focus on community deprivation of liberty (and other welfare applications), as a precursor to my goal of transferring my BIA qualification and assuming the position of AMCP in the future.
Eleanor Tallon is Case Manager at Social Return Case Management and an Independent Best Interests Assessor / Social Worker. She can be found on LinkedIn. She also Tweets @Eleanor_Tallon
Promoting Open Justice in the Court of Protection 
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