Court cannot rely on remote capacity assessment

By Celia Kitzinger, with Eleanor Tallon, 19 November 2023

Mrs King (a pseudonym) is the woman at the centre of this case. At 2pm, at the beginning of the hearing, she’s not in court.  

“We’ll just have to patiently wait, I’m afraid”, says the judge – and we do.  

It’s not until 2.30 that a carer pops up on screen, talking to us as she walks along a corridor, saying “I’m just taking the computer through now”.  Then we see Mrs King, elegant in a navy suit with cream piping, make-up and pink nail polish, and a slightly imperious manner.

It’s good to see that she’s been included in this hearing because when independent social worker, Eleanor Tallon, observed this case (COP 13994886, before DJ Emerson, sitting in Portsmouth) eight months ago, on 23 February 2023, Mrs King wasn’t in court at all. “Very little was revealed about the woman at the centre of this case” she wrote “ – other than she has been living in a care home since the end of 2021, whilst her son remained living in her home […] I was concerned that Mrs King had indicated that she wanted to play a part, yet had she been offered the opportunity to attend the hearing?”. (“This is a quagmire and it needs to be urgently done”: LPA objections, disputed capacity and an imperative need for a panel deputy).

What’s clear though is that Mrs King doesn’t find it easy to follow what’s happening in court, or to engage with the issues.  

I’m not sure whether this is a problem with her ability to hear what’s going on (her son says she has hearing problems) or whether it’s a problem of understanding the complexities of the legal issues and sometimes convoluted language  – a problem shared by me and by Mrs King’s daughter-in-law, who has no compunction about saying so (“I’m not sure what you just said means…”).  

And that turns out to be precisely the problem that the court is now engaged with.  

Capacity assessment

The judge had ordered a capacity assessment  – I think of Mrs King’s capacity to revoke her most recent Lasting Power of Attorney for Property and Finance, which appointed her daughter-in-law and grandson as her attorneys.  All parties seem to have agreed that Mrs King had capacity to make, and then to revoke, the first LPA issued in favour of her son.  She had then made an LPA in favour of the daughter-in-law and grandson, but I think this had never been registered, as she shortly afterwards raised objections to them being appointed as such (as did her son). 

There was no opening summary (as recommended by the former Vice President of the Court of Protection) and I was unable to obtain Position Statements, so I am not confident that I fully understand the background to this case.

But what’s clear is that the problem the court is addressing today is that it’s turned out that Mrs King’s capacity assessment has been conducted remotely, by video-link.  “I don’t think,” said the judge, “it was ever anticipated or provided for in the Order that I made that it would be done via a video-call. The expectation was that it would be done in a face-to-face meeting”.

The assessor found that Mrs King lacks the relevant capacity.

Mrs King’s son had previously raised concerns that the remote capacity assessment might not have been effective in terms of enabling Mrs King to display her capacity to good effect, and the judge had ordered a witness statement from a carer who was present during the capacity assessment to support Mrs King, and this statement had been submitted in October, and was now before the parties, and the judge.

According to the carer, Mrs King found it very hard to hear what was being said during the Mental Capacity Assessment, even with the volume turned high up. The carer said she frequently had to repeat what the assessor was saying.  And Mrs King had been very nervous during the call, holding the carer’s hand under the table – which the assessor couldn’t see – nd becoming increasingly upset when she found herself unable to hear or understand what was being said.  When the assessor kept repeating himself at a higher volume, she became distressed. The judge quoted the carer as saying, “I do feel if this meeting had been done face-to-face it would have been less difficult “.

The parties are now divided about how to proceed.  

The daughter-in-law and grandson – who I think will remain as attorneys if Mrs King lacks capacity to revoke her LPA – thought there was no need for another assessment.  The daughter-in-law said that “in view of how many assessments she’s had to endure – and I do think that word is appropriate – I do not think she should be asked to endure this again”. 

The son  – who unlike the other family members had legal representation (Clare English) – thought there should be another assessment because Mrs King “wasn’t given the full opportunity to demonstrate capacity”.  His view is that “many of the answers she gave were factually correct and demonstrated a knowledge of her finances as far as they could be identified […] We just want her to have a fair shake at it”.  (The daughter-in-law suggested that his view might be motivated by the hope for a different outcome.)

Counsel for the Public Guardian was neutral – adding “for the avoidance of doubt”, that “there is a difference on one hand between not agreeing with, or being dissatisfied by, the outcome of the assessment and saying that the evidence is insufficient as a basis on which the court can form a conclusion”. 

Mrs King seemed clearly to want another assessment:  “We would like a separate judgment again”, she said, “I don’t think it was a fair trial that we had – the questions”.

The judge concluded that it was hard to see how the court could place reliance on an assessment which seemed not to have involved “fair participation” on Mrs King’s part, because she was “having difficulty hearing and becoming stressed”.

Discussion moved on to who should carry out a fresh (in-person) assessment – a COP Special Visitor or a private independent psychiatrist (I think the former was agreed).  There was also, by this stage, a consensus that the first LPA (in favour of Mrs King’s son) should be cancelled and an interim deputy appointed to safeguard Mrs King’s interests (and the judge so ordered) 

The next hearing will be 2pm on 9^th February 2024.

Remote capacity assessments: law and practice

It is lawful to conduct Mental Capacity Assessments^[1] remotely – and during the pandemic this was often the only way they could be done (§37, BP v Surrey County Council & RP [2020] EWCOP 17). 

Early in the pandemic, the then Vice President, Mr Justice Hayden addressed this matter, pointing out:

The assessor will need to make clear exactly what the basis of the assessment is (i.e. video access, review of records, interviews with others, etc.) Whether such evidence is sufficient will then be determined on a case by case basis. It is noted that GPs are rapidly gaining expertise in conducting consultations by video and may readily adopt similar practices for assessments. Careful consideration will need to be given to P being adequately supported, for example by being accompanied by a “trusted person.” These considerations could and should be addressed when the video arrangements are settled. It should always be borne in mind that the arrangements made should be those which, having regard to the circumstances, are most likely to assist P in achieving capacity. (§7, Guidance from the then Vice President of the Court of Protection, 18 March 2020)

Since then there seems to have been an expectation (embodied, for example, in this Guidance for social workers (updated on 7 September 2023) that: “Mental capacity assessments should normally be completed in person, but it may be appropriate to carry out the assessment remotely if, for example, it is not possible to visit the person”. The concern is that there are challenges with remote assessments, particularly in relation to people’s communication needs, and they “should never be undertaken simply for administrative convenience”(§71, Carrying out and recording capacity assessments, 39 Essex Chambers, March 2023). 

I raised a question (see below) about remote assessments on Twitter/X and got some interesting (public) replies.

Here is a longer response by Eleanor Tallon, who also wrote the earlier blog post about this very case:

Eleanor Tallon on Remote Capacity Assessments
During the pandemic all Mental Capacity Assessments had to be remote, which could be very difficult if the person had limited verbal communication. It meant that some assessments were based purely on reports from others, and although this may still count as a valid assessment, it is far from ideal. 

So much is drawn from seeing the person’s body language, their demeanour, seeing how they are supported, what independent skills they have, how they operate within their home environment, and seeing the rapport they have with carers/ staff. All of this information is vital when thinking about what the person’s values are, and their wishes and feelings in terms of the decisional context. 

Views expressed verbally or through their behaviour, should be reflected within the assessment (which would inform the best interests decision if the assessment determines that the person lacks capacity to make the decision). Without seeing the person in ‘real life’, assessors have to rely on the accounts from others in good faith, though from experience such accounts may not always provide an accurate portrayal. 

Physically visiting and spending time with the person, using observational skills as well as corroborating other evidence provided, is on most occasions the optimum approach. 

However, there are situations where it is more appropriate to conduct a remote assessment, on the basis that the person is distressed by meeting new people or becomes increasingly frustrated by repeated professional visits, and simply disengages. In such circumstances, a remote assessment which makes every attempt to glean holistic information, can be the better alternative – though there should be a clear rationale recorded as to why an in-person visit was felt to be in conflict with the wishes and feelings of the individual concerned.

Remote assessments can also be a good follow-up approach to an initial visit, particularly when the person is able to engage remotely, has appropriate support in order to do so, and has established a familiarity and connection with the assessor. I have used video and telephone conversations to supplement assessments, to very good effect.

Ultimately the aim of the capacity assessment is to support the person to make the decision at hand. If remote assessment is conducive to that outcome, then it certainly shouldn’t be ruled out. But if it means that the person’s subjective views are largely absent from the assessment, then assessors would need to be creative and resourceful to ensure the person has an opportunity for meaningful participation – which applies regardless of whether it’s done in person or remotely! 

Eleanor and/or Celia hope to observe the next hearing in this case, on 9^th February 2024, and will report back on progress.

Eleanor Tallon is an Independent Social Worker and Best Interests Assessor. She can be contacted via her website mcaprofessional.co.uk and found on LinkedIn. She also Tweets @Eleanor_Tallon

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^[1] _{This is not so for Mental Health Assessments, which must be conducted via “personal examination”. In Devon Partnership NHS Trust v SSHC [2021] EWHC 101 (Admin), handed down on 22 January 2021, the Divisional Court held that “the phrases “personally seen” in s. 11(5) and “personally examined” in s. 12(1) require the physical attendance of the person in question on the patient.”}