A contested capacity hearing

By Nell Robson and Claire Martin, 19 April 2024

We observed a hearing (COP 14181752) in Derby before District Judge Lubega on the 12^th April 2024. It was listed like this on CourtServe: 

My (Nell’s) interest in this hearing was piqued because I am a sixth form student currently completing an EPQ (Extended Project Qualification) about capacity and best interests for pregnant and birthing women. So, I have been looking out for cases where capacity is an issue (and finding cases that specifically relate to pregnancy and birth decisions is hard because the listings often do not say what they are about in that amount of detail). 

We were really pleased to be sent the link – and the Transparency Order – for this hearing in plenty of time and the court staff joined us early to check that we could hear and see. Thank you! 

The Context (Claire) 

The application was from Sheffield City Council and the respondent is P’s father and 1.2 Rule Representative. 

We learned (in a very helpful summary, invited by DJ Lubega, from Navpreeth Gihair, counsel for the Local Authority) that P is a 19 year-old woman who has diagnoses of autism and pathological demand avoidance disorder (PDA). She has been living in a care home (which she chose from options available) since December 2022 and is said to be happy there. Counsel for the Local Authority said that P has ‘chosen to be mute since February 2020’. We didn’t learn the context for this situation or how P currently communicates her wishes and feelings. 

The issues for this hearing were:

• The authorisation of current restrictions for P on the internet and computer games – it was reported that P will ‘self-neglect and will prioritise gaming over everything’. So, at the moment, the internet is turned off overnight so that gaming is prevented, as well as at specific times through the day to enable certain activities, such as eating. 
• P’s capacity for deciding where she lives – and although this is not a current issue (P is happy where she is, as is her father), there is a dispute between the Local Authority and P’s father about her capacity to make this decision. 
• Who is authorised to take P out of her home. 

Not much was discussed in relation to the restrictions currently in place – we think that the judge agreed to the draft court order to continue with those restrictions in the care plan (Judge: “I am content with the care plan”). 

In relation to the other two issues, P’s father said: 

“[P’s] regime currently is appropriate – better than for years, she has a good routine. The care provider needs to be CQC registered: that’s down to them. The only issue really is [P] needs to be able to decide where to live, but that’s not something on the table so [….] As far as free to leave goes, she wouldn’t go anywhere on her own anyway. Where she lives, there’s no parks etc., she always needs somebody to support her [talked about needing a car to get anywhere at all]. The issue here is, they were stipulating a group of people who weren’t able to help her, and excluding a group of people who were able to help.”

It seemed that only the current care home staff were allowed to take P out, but P does not have as good a relationship with them as with staff from another care agency or with her father (and other family members), who – we think – are the ‘excluded’ group of people that P’s father refers to. She won’t go out with the ‘stipulated’ group of people, meaning, in other words, that she doesn’t get to go out. 

It was agreed that a recital in the court order would ensure the current restrictions are changed such that “[P] would need to be accompanied by someone appropriate to look after her” (judge). 

The final issue before the court was whether or not P has the capacity to decide where she lives. In September 2022, P’s social worker assessed her as lacking capacity for this decision. P’s father disagrees with this but is concerned that pursuing an up-to-date capacity assessment might be distressing for her – given that where she lives is not a live issue at present. He said “She is forming relationships with the psychiatrist and I wouldn’t want to see that go backwards”. 

Counsel for the Local Authority said, in relation to outstanding issues for the court: 

“The only factor is regarding whether she has capacity or not. That was raised by [P’s father]. He is still saying to court that P can make these decisions, and the Local Authority is saying the contrary. These proceedings are to approve the deprivation of liberty. It’s whether there is an active challenge to the capacity evidence. That is of concern. If he is saying ‘she can make these decisions for herself’, then the entire court procedure is predicated on fact that she lacks capacity. So, I would be hesitant to end proceedings today if [P’s father] is saying that she has capacity.”

The judge confirmed “I don’t think I had in mind a final order today” and proceeded to think about whether and how P’s capacity might best be determined, including appointing an ALR (Accredited Legal Representative) and commissioning a Section 49 report.

Different Views on Capacity (Nell)

Since this was the first time I have ever observed a hearing, and didn’t know what to expect, or know anything about the case, it was extremely useful that counsel gave a summary of the case at the start of the hearing (as I’m told was recommended by the former Vice President).  It allowed me to think about the matters at hand during the hearing rather than being concerned with trying to work out the facts of the case. If that had not been provided I can imagine I would have found it much harder to understand what was happening and what was being decided in the hearing. I could focus on the proceedings to help me to see how capacity is approached.

The current support network surrounding P is based on the findings that she lacks capacity for a multitude of things, however this was (partly) disputed by P’s father. This highlighted how a perceived lack of capacity should not be assumed – different people have differing opinions on whether P has capacity. And even though a social worker had assessed P to lack capacity to decide where to live, this is not set in stone and challenges can be made to such decisions. I learned that a section 49 report may be requested from people caring for P, to help the court understand and decide P’s capacity for certain decisions. In this blog it explains:

“A common scenario when a section 49 report might be considered is when P’s capacity is in question. In such a case, the parties might seek an order requiring the NHS Trust to arrange for a  consultant psychiatrist to assess P’s capacity and produce a report. Depending on the particular circumstances, the appointed clinician might also be asked to consider additional, specific areas of capacity and to make recommendations regarding the management of P’s condition and best interests more generally.”

In the hearing it was also interesting to see the court balancing the potential need for a renewed capacity assessment, whilst also considering how undertaking the assessment might destabilise P. The father highlighted his worry that undertaking a new capacity assessment could cause P to backtrack in the progress she has made. He also showed a nuanced understanding of capacity in stating how P may not have capacity to sign a tenancy agreement but does have the capacity to decide where she should live: 

Father: The only other thing is being entitled to decide where to live. In my opinion, she’s the only person who’s made sensible decisions about where to live. Including where she lives now. Whether she should be signing a tenancy agreement is another thing, we have no grounds to prove [talked about P not making poor decisions in the past and knowing where she likes to live]

I thought this was an important point: he uses past evidence of good decision making to suggest that this demonstrates capacity for future decision making in the same domain. This is an important aspect of looking at capacity: just because someone lacks the capacity for one decision it does not automatically mean they lose capacity for other decisions. 

Concerning the development and completion of my EPQ, it was useful to see how capacity was considered in a hearing where opinions differed about whether or not P had capacity. I can imagine opinions often differ around whether someone has capacity or not and it is important that if a person is assessed as lacking capacity for a decision, the judgment that they lack that capacity must be certain and based on clear evidence. If the evidence was not ascertained correctly, then that opens the potential for the right to autonomous decision-making being taken from a capacitous person. I think that would be a dreadful situation. 

In regard to medical decisions, it can mean the difference between whether someone can choose their own medical care or not. In my EPQ this is whether a woman is able to autonomously able to refuse medical interventions such as a caesarean section, or if it can be decided that she must endure one against her wishes as she has been assessed to lack mental capacity to make that decision. Assessments of capacity, by others, control whether people are able to make autonomous decisions or not, which restricts their freedom and control of their own life. It really highlighted to me the importance of making the correct judgement and what a difficult job judges must have.

The Outcome (Claire and Nell)

DJ Lubega agreed the final wording for the court orders, which included the appointment of an ALR and the importance of stating that anyone ‘appropriate’ to accompany P outside of her home was permitted. The judge was clear that, although P was not currently stating she wished to move out of her current home, the existing court authorised restrictions that she is subject to, do amount to a deprivation of liberty, and would continue to amount to a deprivation of liberty even with a wider pool of people taking P out. Addressing P’s father the judge said: 

“If you’re saying she has capacity to make the decision for herself, if she turned around next week to say I want to live somewhere else, then this needs to be bottomed out. It needs to be done in a lawful way and needs further consideration from the court. My question is [….] given the concerns both parties have expressed about the impact on P, what process should take effect. Is the entire process needed? Can it be streamlined?”

Counsel for the Local Authority confirmed: “There is scope for it to streamlined. It may be that when the ALR is involved, there is a different way. The work with P by the psychologist will continue in any event. We are all alert to concerns about further distress and need to build a relationship carefully. Simply, that if we need further capacity evidence … the psychologist has said that if we need one then it needs to be done very carefully. We need to understand how that can be better approached in her best interests. We don’t know how at this stage.”

We didn’t learn very much at all about P as a person in this hearing – there have been several hearings in the case, so this is perhaps not surprising. We wondered why P had not spoken since 2020 and how she communicated her wishes and feelings – and it sounded like she was able to do so. P’s father, as well as P herself, seemed to be very happy with the care she receives where she is living now, and all parties were concerned about disrupting her relationships and stability by subjecting her to a capacity assessment; an assessment that is needed for the Court of Protection to have jurisdiction in relation to decision making about where P lives, both now and in future. 

Given that P is not expressing any desire to leave her current home, and everyone was worried about the psychological impact of more assessments, we were unsure why proceedings could not be brought to a close without a determination about capacity for that decision. Then, if and when P did express a wish to move home, a capacity assessment could be carried out at that time. 

A ”short, final hearing” (judge) is planned for 27^th June 2024. 

Nell Robson is a sixth-form student completing an Extended Personal Qualification entitled: “What are the challenges in making best interests decisions for pregnant/birthing women?”

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 team of the Open Justice Court of Protection Project and has published dozens of blog posts for the Project about hearings she’s observed (e.g. here and here). She tweets @DocCMartin