By Claire Martin, 25th March 2023
Mr A is the applicant in this case. He is currently deprived of his liberty in a care home setting. He has made a s.21A application challenging his deprivation of liberty on the grounds that he has capacity to make the relevant decisions about his care, residence and finances, and he wants to return home. Mr A’s case has been before the Court of Protection for around a year, since March 2022.
The position of the Local Authority (which the Transparency Order prevents me from naming) is that Mr A lacks capacity to make the relevant decisions. The Local Authority is, however, considering a return home as possibly in Mr A’s best interests and will support a trial of his living at home (for a month) once his home has been decluttered and made habitable. They are also exploring a supported living placement.
I’ll begin by laying out the background to this hearing insofar as I understand it. I’ll then give a sense of the way this hybrid hearing was conducted, illustrated in detail by the expert witness evidence to show the type of questioning that can be faced by witnesses in court. Finally, I’ll reflect on the hearing, including the potential difficulties that assessors come up against when assessing capacity at one moment in time for capacity to make decisions that, in practice, will need to be made at another point in time.
Unfortunately for me as an observer the Position Statement says ‘The background to these proceedings is well known to the court. The matter was also last before the court on 6 February 2023. As such, the background to proceedings will not be set out here“.
There have been four capacity assessment reports from psychiatrists (I don’t think four different psychiatrists though) all of which have concluded that Mr A lacks capacity for the decisions in question, to:
a. Conduct the proceedings;
b. Make decisions about his residence;
c. Make decision about his care; and
d. Manage his finances.
The expert witness at today’s hearing, Dr Thomas Elanjithara, wrote one of those reports (in February 2023), and also reached the view that Mr A lacked capacity for all of those areas.
Mr A ‘strongly asserts his capacity’ (counsel) and my understanding is that a final declaration that he lacks capacity has not yet been made, so this hearing was to enable the cross-examination of the expert witness to enable the court to reach a determination about Mr A’s capacity for the decisions in question.
The respondent in the case (the Local Authority) does not dispute Dr Elanjithara’s evidence, and has made an application to be appointed Property and Financial Affairs deputy for Mr A (which he is worried about) and at the same time is in the process of exploring options for different types of less restrictive accommodation for Mr A, including a trial in his own home. They are also trying to sort out other things for Mr A, such as helping him with ‘community access’, ‘reablement’ and to do some volunteering.
What I’ve gleaned from the Position Statement, and the hearing that I observed, is that Mr A is a 70-year-old man who had a haematoma in 2021 and has been living in his current care setting since then. He has a history of alcohol misuse and Dr Elanjithara has diagnosed Mr A with alcohol related brain damage (ARBD) (commonly referred to as alcohol-related dementia) caused by thiamine and nutritional deficiency. He uses the term ‘alcohol related neurocognitive disorder,’ which describes alcohol related brain injury where there are cognitive and executive functioning problems.
Hannah Bakshani gave a helpful introduction to the case, explaining that Mr A had struggled with alcohol dependency and had been found at home with blood in his bed (I think was in 2021) and, following a stay in hospital, has subsequently lived at his current care setting. I am not sure what sort of a setting this is, but it is quite ‘restrictive’ and that there is a lot of support in place, Mr A himself feels restricted and does not want to live there. As Hannah Bakshani said, Mr A ‘strongly objects’ to being kept in the care setting. I don’t think Mr A is currently drinking – I formed the impression during the hearing that he is closely monitored at all times and he does not go out on his own.
In this hearing, the expert witness, whilst saying he assessed Mr A as lacking capacity for relevant decisions, also says that his tests were not sophisticated enough to be conclusive about the cognitive impairment (which is asserted as the cause for lack of capacity). In particular, it didn’t sound as if any more detailed cognitive assessments had ever been done – which is why the Litigation Friend is challenging the conclusions.
The hearing I observed for this case (COP 13881941 SA) was on 6th March 2023 before District Judge Read sitting at Middlesbrough County Court. Hannah Bakshani represented Mr A (via his Litigation Friend) and the Local Authority was represented by Stephen Williams.
It was a hybrid hearing – meaning that some people were in the court room and some were attending remotely. This often means that sound quality is not ideal and, despite the court official trying to ensure that the microphones were audible, I was often unable to hear the barristers in the echoey courtroom. The witness (attending remotely) and the judge (as he sat with the microphone right in front of him) were crystal clear, but when the barristers stand to address the judge, they are not close to their microphones. At those times, barristers often refer to their position statements and the loudest sound is then the judge rustling papers to find the relevant paragraphs, because the dominant microphone is the judge’s. A clip-on mic for the barristers would be really helpful for anyone attending or observing remotely, to balance out what is amplified and enable clearer hearing of the proceedings. So, my notes from this hearing have frequent gaps, due to inaudibility.
The hearing was on CVP (Cloud Video Platform) which is a court service remote video platform – and the main image on my screen was the witness giving evidence. The courtroom itself was a tiny square on my screen and I couldn’t change it (as is easy to do with Microsoft Teams). This could be my lack of technical know-how, and as a consequence I only realised at the end of the hearing (when the witness had left and the courtroom was the main image on my screen) that Mr A was at the hearing, sitting behind Hannah Bakshani. He hadn’t been addressed or spoken himself throughout the hearing. This is very unusual, certainly in my experience of observing many hearings where P is present, remotely or in person. At every other hearing I have observed, the judge has welcomed P and often has made it clear that they will be given the opportunity to speak if they would like to.
In many CoP cases it is often simply reported that the expert capacity assessment has deemed P to lack capacity for the relevant decisions, without further elaboration. This hearing piqued my curiosity, because the examination of the expert witness meant that this evidence would be scrutinised in detail. In my department at work, we conduct neuropsychological assessments in the context of potential dementia, so the fact that the witness was discussing his cognitive assessments was of additional interest to me.
Evidence in chief
Hannah Bakshani opened by asking Dr Elanjithara about the tests he had used to assess Mr A’s memory ability and how he reached his conclusions about Mr A’s capacity. What was notable to me was Dr Elanjithara’s assertion that Mr A required further, more detailed, neuropsychological assessment.
HB: Memory – is this something that is acute or early stage and can improve over time?
Dr E: Correct …. So when we say impairments improve over time, [the] level of accumulated damage that can happen with more alcohol consumed, recovery becomes less and less … cumulative damage increases. Memory improvement can happen but not every time.
HB: You say there are limits with the ACE [Addenbrooke’s Cognitive Examination] [unclear] … you recommended more robust neuropsychological testing take place. Can you describe?
Dr E: A full WAIS battery and DKEFS for executive functioning – neuropsychologists tend to start with those and then choose other batteries if they wish. [It is a] matter for specialist neuropsychologists. From what I have seen there is a need for these tests to take place to understand his neurocognitive function better.
Dr Elanjithara went on to explain that a further screening assessment had been conducted (as well as the ACE-III), which he had not administered himself, called the Cambridge Brain Sciences test. This is an online screening assessment that was developed to track recovery and cognitive function. It tests abilities such as short-term memory, reasoning, verbal ability and attention. There was some uncertainty about this test and the validity of the results for Mr A:
HB: Your tests … at the bottom there’s a further table but I have not been able to find what that table references. Can you explain where those results are taken from?
Dr E: The Cambridge Brain Sciences further cognitive screening. …. [It is a] screening not a diagnostic test – it indicated the need for further comprehensive testing with more validity. Again, one has to put the screening tests – both of which show potential impaired cognitive and executive function – [with the] next step [which] is to ask for more robust testing, through neuropsychological testing.
HB: [MrA] … he’s explained to us today that when he completed the assessment [Cambridge Brain Sciences test] I understand you weren’t present?
Dr E: [The one] online. … Yes I was not present.
HB: The member of staff he found unhelpful, they ate a packet of crisps while he completed the assessment. Could this have impacted his performance?
Dr E: It could have impacted his understanding of the instructions. I have not relied on the [results] and …. there is need for further robust assessment. [It would be a] different picture if [Mr A] had scored high on these testings. I would have gone back and sought further assessment before completing the report.
This was an interesting exchange to me. Mr A had not scored highly on the online assessment, and Dr Elanjithara was confirming that this might have been because the administration of the test confounded the results. Yet the results had been included as part of the assessment report. The person doing the test with Mr A was eating crisps at the time! I found this quite astonishing.
Hannah Bakshani continued to explore the meaning of the cognitive assessment results, checking that Mr A ‘would fall into the category of MCI (Mild Cognitive Impairment)?’ Dr Elanjithara said that ‘It is clear that [Mr A] does not have dementia’ and, at the same time, that the assessments indicated an executive functioning difficulty which concerned him in relation to the prospect of independent living:
Executive function can impact on the ability to learn, if not orchestrating information appropriately and retrieving it appropriately, new learning is not as good. The screening test can only screen out MAJOR pathology and impairment – other things are missed out. This can have a devastating effect if he were to return to independent living without support. [Dr Elanjithara’s emphasis]
Dr Elanjithara went on to explain his reservations about the OT assessment and report that was carried out last year. He said that ‘it’s not impossible’ for Mr A to improve his capacity for the decisions in question, but cautioned that ‘an in-house assessment taking place within a short period of time with a therapist present in the room with him …. takes away the self-initiation part of it. The problem is executive function – self-governance’.
For me, this echoed the discussion between Alex Ruck Keene KC and two addiction psychiatrists (Julia Lewis and Ken Wilson) in a recent podcast about ARBD and mental capacity. Interestingly, both emphasised the ‘paradox’ of frontal lobe functioning in ARBD: “in a cued environment [there is] a normative way of behaving. In more complex, social decisions, it falls apart.” (Ken Wilson) and asked about OT assessments to see functioning, to complement self-report, Julia Lewis said “OT yes, but a sparkly clean kitchen, all the cues are there. … At home, it’s not the same”.
Hannah Bakshani asked how this has an impact on Mr A’s ability to manage his own self-care:
Dr E: In the current setting he is looking after himself fine. … Things are likely to be different … there is a potential underlying deficit, if we expose him suddenly to independent living with limited support, it will overwhelm him quickly, and his default position is likely to go back into alcoholism. So any change has to be gradual supported and stepwise …
HB: So, you weren’t able to test these because they were masked in the environment?
Dr E: Yes, and that’s the reason I have asked for more neuropsychological testing to put it into context. At the moment, from my assessment, those deficits are present – it is highly likely those deficits are present.
HB: In which case, were you able to properly assess [Mr A’s] capacity without those tests available?
Dr E: To a great extent in terms of probable ability. [Now we need] fine tuning – we need those tests. From screening and superficial assessment there are lots of soft signs – so more comprehensive tests could then help us fine tune to help [Mr A].
I wondered why the further, detailed neuropsychological assessment had not been sought prior to the hearing. Perhaps there wasn’t time? Dr Elanjithara is an expert witness, not Mr A’s treating clinician, and was recommending this to the court though – and it made me think that, if this were necessary (as part of Mr A’s care) to understand his needs, why is Mr A’s care team waiting to be ordered by the court? Professionals carrying out mental capacity assessments need to understand what a person’s needs and limitations are to enable them to present relevant information in the assessment – this is to enable P to demonstrate an ability to understand and weigh up “reasonably foreseeable consequences of— (a) deciding one way or another, or (b) failing to make the decision” (Mental Capacity Act 2005 Section 3(4))
Capacity or Best Interests?
I felt confused by Dr Elanjithara’s reasoning behind reaching the conclusions he did about Mr A’s capacity, given that he was recommending further assessment. This exchange about Mr A’s capacity to decide where to live highlights the issue:
Dr E: The next steps are important to be more supported, based on further neuropsychological testing. The current placement is far too restrictive but going home at the present moment could unmask difficulties and cause a spiralling down. There is a step in between the two, as a clinician I would recommend for him to consolidate, then further steps could be taken. Currently he’s looking after himself, but it’s too restrictive.
HB: You have provided his best interests. I’m asking you about his capacity to make that decision. [counsel’s emphasis]
Dr E: There’s a helpful breakdown in the initial bundle 2018-2021 describing multiple incidents observed by paramedics over time, patterns repeated over and over again despite measures being put in. [Mr A] acknowledged those happened but clearly minimised the impact at the time and in future.
HB: [Mr A has] informed his solicitor during a meeting that when he lived at home he had carers – up, dressed, medicated – he now accepts he needs 4 calls a day. Does that not demonstrate understanding of his care needs in different settings?
Dr E: It represents some understanding. As it stands – those 4 visits are not sufficient to ensure his safety. I explained to him that he needs more robust support and could consider stepping down. Three states: highly exposed, highly supported, and a middle ground.
HB: Your assessment is an assessment of capacity. What I am asking is: Was P able to understand the residential options, considering the information you’d provided him about care needs?
Dr E: There’s overlap – [it is] important for me to understand what the care needs are. I would not be able to assess capacity without the knowledge of care needs. I wouldn’t be able to check his understanding. There were no clear pre-existing clinical recommendations that his care team was following. I would have tested his understanding against that. There were no available reports from the care side about his care needs. I would have checked this with him if I had had this.
HB: You were provided with information about his care needs — I can take you to C1 dated 14 December 2022. … Also to the OT assessment at F65: it shows that [Mr A] has independence with walking with aids, is able to use roads safely, is orientated and able to engage in familiar tasks, is able to learn, showers, manages oral care, is aware of medications regime. Although the OT identified some difficulties with meal preparation, they thought he could become independent if using a timer. So, you did have information about care needs.
Judge: Had you seen this assessment?
Dr E: Yes that’s correct.
HB: So, it’s not quite right to say you didn’t have the relevant information to assess the residence options against. What [Mr A] has said is that he would like to go home with a package of care. The Local Authority has concluded that those residence options would be able to meet his needs. Why do you say different?
Dr E: I agree those reports were set out from an OT and social side of things. In a complex presentation such as [Mr A’s] it is important to have a more integrative MDT assimilation of the information and at the centre is an understanding of the clinical diagnosis and risks. At the time of my assessment, I did not have oversight of the comprehensive medical assessment of risks and prognosis. In the absence of this, from the available information, I put together and integrated information. An understanding of the progression of [Mr A’s] presentation, what are the future risks … [it] led me to integrate to a clinical understanding. [There are] areas of concerns and rehabilitation, as well as areas of improvement. The ability for new learning gives hope, there is also risk of significant destabilisation.
HB: Are you not setting the bar too high for [Mr A’s] understanding? You have taken a significant amount of information – clinical – are you not setting the bar too high for his capacity?
Dr Elanjithara said that he did not think he had set the bar too high when assessing Mr A’s capacity and that there has been a pattern of decline over the past 4-5 years when aspects of daily living overwhelm Mr A and he returns to drinking excessive alcohol. He argued that Mr A cannot weigh up this information in reaching a decision.
HB: So, the assessment was based on how he previously presented in the community and risks on those occasions?
Dr E: It partly did involve that, but capacity is time specific so … it’s important to reflect on how he is able to use information generally, in the past as well. And to consider what has changed. What are the changes from the past to now?
HB: What evidence do you have that he can’t adapt to those changes?
Dr E: At this moment – he’s in a supportive environment where those things are masked. The last 4 years or so [there have been] repeated patterns of how those risks – personal and environmental safety, risk of exploitation, health risks – have repeated over a period of time. That’s an important factor. It’s unfair on him to purely report on him in a very supported environment. Unfair to rely on day-to-day observations in his current placement.
HB: You’re saying that [Mr A] needs to consider information about what could happen, what has happened, and analyse that from a clinical perspective. But what you’re being asked to do is consider whether he can use and weigh information in order to make a capacitous decision. Going back to residence – those 3 options. The Local Authority is suggesting he could live at home with a package of care. You have described that to him. Why is he unable to use and weigh that information to make a capacitous decision?
Dr E: It has to be based on the factors you see and the clinical presentation, risks etc. I was given a partial view of this, a report from the OT and other information. [There’s an] absence of a collective report. I wouldn’t be doing my job if I didn’t integrate the bigger picture. Is that clear?
At this point, my notes say ‘No, not to me.’ I was getting really lost in the questioning and evidence. I don’t know whether Dr Elanjithara had asked, specifically, about ‘reasonably foreseeable consequences’ of deciding one way or another (S3(4) MCA), based on his established needs. I think he was saying that, when he did the assessment, he did not have a comprehensive picture of established needs to test Mr A’s understanding against, and that he was trying to ensure he did not miss anything important when he was assessing Mr A, especially because of the history and what that might indicate for Mr A in future. This was certainly a position put forward by Julia Lewis and Ken Wilson in the podcast mentioned earlier. They suggested that ‘performative decisions’ (future, complex scenarios) are harder to assess in ARBD than ‘decisional decisions’ (such as what to wear now), and that ‘you need to pick up on old behaviours to predict the future’, and that ‘it is almost negligent not to have baseline information from others in alcohol and mental capacity assessments’.
There was a similar tussle over whether all of the relevant information was available to assess Mr A’s capacity to manage his finances. And a similar assertion that, in the confines of a structured environment, Mr A was able to demonstrate some financial understanding, but that if in a less supported place, Dr Elanjithara predicted this could break down, mainly due to the risk of alcohol relapse. And in relation to litigation capacity Hannah Bakshani noted that Dr Elanjithara’s report changed over time, from not rebutting capacity to the opposite. It wasn’t quite clear (to me) why that was.
After a lunch break, Stephen Williams, counsel for the Local Authority cross-questioned Dr Elanjithara. I very much felt for Dr Elanjithara. Having recently given evidence myself at a hearing (not the Court of Protection), I empathise with how stressful and exposing an experience it is.
SW: Throughout your evidence today, Dr Elanjithara, you referred to risks and [Mr A’s] understanding and ability to weigh up those risks. Is it your opinion, doctor, that the crucial issue for [Mr A] in lacking capacity to make relevant decisions, is his inability to weigh up and use the information about those risks?
Dr E: Yes that is a particularly important factor, I felt.
SW: If I could refer you to your report at F127 in the bundle. At 6.3.4. – you say that [Mr A] struggles to [quotes Dr Elanjithara’s report – lost what was said here] … risk of rapid breakdown in safety – risk of rapid and severe relapse. ARBD (alcohol-related brain disease) falls etc. So you confirm that using and weighing in particular is an important factor. You answered questions about ability to retain information. Is it your view that the crucial element is the ability to use and weigh?
Dr E: That’s correct.
SW: Would you agree that this inability to identify, initiate seeking help and the concern you had about self-governance, shows a lack of insight into the risks?
Dr E: There is an overlap. Insight is knowledge – what we are talking about is being able to use that knowledge when it is required to be acted upon. That is required for anyone to keep themselves safe.
Overall, I think this longitudinal perspective is what Dr Elanjithara was getting at. Stephen Williams enabled Dr Elanjithara to more succinctly state his position:
SW: One final question. Does it remain your opinion that [Mr A] lacks capacity to make decisions as to residence, care and support, finances and these proceedings? And if yes why?
Dr E: I do agree with that. It is because of an organic brain impairment and functioning – neurocognitive impairment with the potential for worsening in future. The impairment in the function of the brain affects his ability to weigh up and use information to deal with those tasks mentioned.
SW: No further questions.
Hannah Bakshani submitted that Dr Elanjithara had ‘treated a capacity assessment as a best interests assessment’ and assessed Mr A against those best interest options. She argued that people are ‘routinely assessed in care homes and this is not a barrier to assessing capacity’. She reminded the court that people are allowed to make unwise decisions. Reference was made to PB and Tower Hamlets  EWCOP 34, a case of a man with alcohol-related brain disease heard by Mr Justice Hayden, in which the judge said:
“Within this context, a person cannot be considered to be unable to use and weigh information simply on the basis that he or she has applied his or her own values or outlook to that information in making the decision in question and chosen to attach no weight to that information in the decision-making process.” (§14 (§14 PB and Tower Hamlets  EWCOP 34, Hayden is quoting from Kings College NHS Foundation Trust v C and V  EWCOP 80 at §38, MacDonald J).
“The professional instinct to achieve that which is objectively in P’s best interests should never influence the formulation of the criteria on which capacity is assessed.” (§51 (ii) PB and Tower Hamlets  EWCOP 34, Hayden)
Judge Read confirmed that ‘we must never eclipse the fundamental right to make decisions when [they] have the capacity to do so.’
So Hannah Bakshani’s submission was that “the litigation friend would invite the court to consider further assessment. My position is that there are significant benefits to a further assessment taking place.” To which the judge replied: “We have already had two neuropsychiatrists! Never mind though there is no limit to that number”.
My notes at this point express my own view that the court needs a neuropsychologist as recommended by Dr Elanjithara. A neuropsychologist is a specialist psychologist (either clinical or educational) who has completed further post-graduate training in the assessment of the functioning of the brain. They use tests that assess in detail abilities such as attention, memory, language, visual problem solving and ‘executive’ function (the ability to organise and plan, as well as the ability to ‘regulate’ our responses, use judgment and the ability to inhibit or stop ourselves from acting inappropriately). Neuropsychologists often work alongside neuropsychiatrists who are medical doctors specialising in the diagnosis and treatment of brain disorders e.g. following traumatic brain injury, or in the context of mental health problems including alcoholism and other addictions.
On behalf of the Local Authority, Stephen Williams submitted that his client did not accept that Dr Elanjithara ‘set the bar too high’. He referenced the case of TB v KB and LH (Capacity to Conduct Proceedings)  EWCOP 14 concerning executive dysfunction and alcohol consumption, quoting the judge stating that such capacity decisions are a ‘dynamic transactional process …. decisions to be taken over a number of years ….’ Stephen Williams said that ‘we do not think yet another report from yet another psychiatrist is necessary.’
The judge referred back to previous decisions for Mr A, directions for assessments and court reports and then summed up:
“There are a range of possibilities – if the court makes a decision in favour of [Mr A] having capacity, that’s the end of it. If the court holds he holds capacity in regards to some areas and not others, it would end in respect of those areas that he has capacity for and not for the others. If, however, either the court decides that [Mr A] is not capacitous to any extent, or decides he lacks capacity in one of the substantive areas, we have to move on and look at best interests. I don’t think the court can a make substantive decision for best interests without further evidence. This is a particularly finely balanced decision and I am not going to rush.”
There was discussion about living options being explored, including a return home, but only in the spirit of enabling all options to be considered, pending a decision on capacity and best interests.
At the end of the hearing, the judge said ‘Good to see you [Mr A] – thanks for bearing with us.’ Hannah Bakshani then said ‘[Mr A] would like to speak to you – perhaps now is not the forum.’
Judge: I said at the last one he could have one! Might be an idea to do it when I have handed judgment down. It would be a good idea then – couple or three weeks or so. You’ll remember I said if you’d like to speak to me again that is fine.
This final exchange was curious to me. In previous hearings I have observed, when P has been present, able and willing to speak to the judge, they have been able to fully participate in proceedings. I wondered why this was not the case for Mr A. His counsel had not asked throughout the hearing for Mr A to be able to speak, though at the end she was aware that he wanted to. Clearly, from Judge Read’s comment, Mr A has spoken to him before. Perhaps the judge thought that the decisions regarding capacity were still so up in the air there was little point in discussing things further. In any event, Mr A sat quietly, listening throughout the day, from 11am to 3pm, with a lunch break, without being addressed (by the court) or speaking himself (to the court). I have imagined what that would be like myself – especially listening to other people discuss me, my abilities and my future. My image is not of myself sitting silently throughout the whole process!
I felt frustrated for Mr A that a final declaration regarding his capacity to make his own decisions about these things has not yet been made. And that further assessment is now recommended and being considered by the judge. However, the cognitive assessments carried out by Dr Elanjithara are screening tools (as he said) and do not provide a detailed assessment of Mr A’s abilities. Why hasn’t the system around him commissioned those assessments already? Perhaps this is what Dr Elanjithara meant when he said ‘at the time of my assessment, I did not have oversight of the comprehensive medical assessment of risks and prognosis’.
Hannah Bakshani’s contention was that the expert witness strayed into best interests recommendations rather than focusing on a capacity assessment. Did he? I think he might have at times – in particular here:
“The current placement is far too restrictive but going home at the present moment could unmask difficulties and cause a spiralling down. There is a step in between the two, as a clinician I would recommend for him to consolidate, then further steps could be taken.”
I empathise with Dr Elanjithara. Clinicians find it so hard to set aside what they think is best for people and, instead, solely focus on whether P understands (retains, weighs and can communicate) the relevant information about a decision – regardless of whatever decision is then made. But doing that is crucial to upholding the spirit and letter of the Mental Capacity Act.
However, he was grappling with the difficulty of assessing capacity in the context of a calm conversation whilst knowing that Mr A would be acting upon such decisions in a completely different situation (as HHJ Lieven points out, below). Another case, observed and blogged by Jenny Kitzinger has similarities and also involved alcohol-related issues. I am not familiar with case law on addictions but I have had experience with patients (in the absence of dementia, but experiencing mental health problems or with other diagnoses such as Parkinson’s disease) who have been told, time and again, by various organisations (such as Social Services, NHS, banks), that they ‘have capacity’ to decide to drink or gamble.
Is theoretical capacity the same as actual capacity if you are not making the decision, doing the ‘thing’, then and there? This particular point reminds me of a recent case that I observed (and blogged here with Josie Seydel). A key issue for P in that case was the difference between being able to talk, intellectually, about a future situation and what she asserted she would do, and being able to similarly weigh and use that information when actually in that future situation. As Lieven J. said in that hearing:
“This is a classic case of lawyers meeting clinicians, particularly psychologists and psychiatrists. Life just isn’t as simple as lawyers want it to be. What I’m getting from your evidence is how complicated it is. We can’t dissect P’s mind to get at every instance. Things change depending on different variables. …. I’m getting a picture of P being quite calm at home, less so in the community. My focus must be on decision-making – when she’s faced with an actual DECISION”. (Lieven J, as blogged here)
The judgment in that case took a ‘longitudinal view’ of P’s capacity in different situations at different times, and the practicability (for people working with P on the ground) of acting on court orders. HHJ Lieven said, in that judgment:
“It is a principle of statutory construction that the Court must have regard to the “mischief” of the statute. One of the mischiefs of the MCA is to seek to preserve an individual’s autonomy, but in a way that ensures that when they do not have capacity, their best interests are protected.” (Re PG  EWCOP 9, Lieven J)
Perhaps Dr Elanjithara wrestled with this ‘mischief’ when trying to complete his capacity assessments.
I very much hope that decisions will be made soon for Mr A, to enable him to get on with his life, wherever that may be.
Claire Martin is a Consultant Clinical Psychologist, Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust, Older People’s Clinical Psychology Department, Gateshead. She is a member of the core group of the Open Justice Court of Protection Project and has published several blog posts for the Project about hearings she’s observed (e.g. here and here). She tweets @DocCMartin
 I don’t know why it was thought necessary to refuse permission to identify the local authority in any publication about this case. On the basis of what I have learnt about this case I could not see any reason why the Article 8/Article 10 balancing exercise should have resulted in a decision that it was necessary to conceal the name of the public body involved.
One thought on “Conflating capacity and best interests? Cross-examining a neuropsychiatrist”
This is a particularly interesting read for those involved in assessing capacity for people affected by frontal lobe impairment. It epitomises the need for evidence based risk assessment/ real world observation, to inform what is relevant information for longitudinal decisions (around support/ managing finances).
Looking at the weight of the identified risk factors through the person’s own value context, is also key to understanding how they use that information (or how they are likely to use it in the moment).
The focus should be on functional capacity in a real world setting. Without evidence of such, it is incredibly hard for any assessor to come to a valid conclusion (which seems to have been the problem in this case).
Therefore it is so important for the professionals involved, to establish a reasonable belief to doubt capacity (on a specific decision), based on clinical observation. This information needs to be accessible to support a formal assessment of capacity on longitudinal decisions
Before requesting/ initiating an MCA, consider whether there is clarity over actual risks and speculated risk?
What is the threshold of risk and who has decided it? How does this compare to risk thresholds within the general population?
Are MDT members, Case Managers, Social Workers and carers on the ground supporting the person to make the decision in question, by promoting opportunities for positive risk taking (within a phased and measured approach)?
These questions need to be addressed initially to ensure a robust MCA can be undertaken with the appropriate and relevant information to hand.
Maybe this will go some way towards getting the balance right when considering ’empowerment versus protection’, which is always tricky, but particularly crucial if the decision is so complex that it needs to be scrutinised by the court.