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England and Wales Court of Protection Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Protection Decisions >> AMDC v AG & Anor [2020] EWCOP 58 (18 November 2020) URL: http://www.bailii.org/ew/cases/EWCOP/2020/58.html Cite as: [2020] EWCOP 58, [2021] COPLR 177, (2020) 23 CCL Rep 661, [2020] WLR(D) 645, [2020] 4 WLR 166 |
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IN THE MATTER OF THE MENTAL CAPACITY ACT 2005
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
AMDC |
Applicant |
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- and |
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(1) AG (2) CI |
Respondent |
____________________
Joseph O'Brien (instructed by Switalskis Solicitors) for the First Respondent
Ben McCormack (instructed by Cartwright King Solicitors) for the Third Respondent
Hearing dates: 26-28 October 2020
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Crown Copyright ©
Mr Justice Poole:
Introduction
a. The conduct of litigation.
b. Her place of residence.
c. Her care and support.
d. Her contact with other people.
e. Management of her property and affairs including termination of her tenancy.
f. Engagement in sexual relations.
g. Marriage.
"The processes of the Court of Protection are essentially inquisitorial rather than adversarial. In other words, the ambit of the litigation is determined, not by the parties, but by the court, because the function of the court is not to determine in a disinterested way a dispute brought to it by the parties, but rather, to engage in a process of assessing whether an adult is lacking in capacity, and if so, making decisions about his welfare that are in his best interests."
When ordering an adjournment of this case I was satisfied, in accordance with s. 48 of the Mental Capacity Act 2005, that, notwithstanding the concerns about the expert opinion evidence, the evidence as a whole established that there was reason to believe that AG lacks capacity to make the decisions under consideration and that it was in her best interests to make interim orders and directions. Accordingly, on 28 October 2020 I authorised the continued deprivation of AG's liberty with her residence and care being in accordance with a safeguarding plan dated 20 May 2020. A resumed hearing was fixed in January 2021 with directions for the receipt of evidence from a new expert psychiatrist. These interim orders deprive AG of her liberty and interfere with her Article 8 rights. Amongst other restrictions, the ongoing regime which I have authorised to continue until the final determination of this case effectively prevents AG from engaging in sexual intercourse, from leaving ECH and from choosing her care arrangements. Because of the impact of an adjournment on AG, and to assist the newly instructed expert, I was invited to and agreed to give this interim judgment.
Background
Expert Evidence
"a. Conduct proceedings.
b. Make decisions about her residence and care.
c. Consent to sexual relations.
d. Make decisions in relation to contact with others.
e. Make decisions about her property and affairs to include terminating her tenancy."
Dr Quinn concluded his report with the following summary:
"There is an impairment of her disturbance in the functioning of her mind or brain as arises from the presence of dementia. She lacks capacity to make a decision in relation to the matters in question."
"please set out the relevant information given to AG for each decision assessed and her ability to understand, retain use and weigh that information as set out in the test for capacity in the MCA 2005." [emphasis in the original].
"Having re-visited the case again on 22nd May 2020 the author explored with her the area of capacity to consent to sexual relations including the mechanics of the act, pregnancy, sexually transmitted infections and the issue of consent. Those matters were discussed with her in blunt basic terms. She did not demonstrate any deficit in registering, retaining the information and weighing up the pros and cons of consent to sexual relations the author can advise those instructing that at the time of that examination on 22nd May 2020 she did not lack capacity. However, and the author would advise caution moving forward with this, that issue can change at any time with [AG]."
Indeed, he added the following caveat at the end of paragraph 3 of that report:
" whether the picture of dementia changes i.e. deteriorates even further is difficult for the author to comment on. It is as the court will see, a fluctuating picture."
At paragraph 6 he wrote,
"Her ability to make the assessed decision as a consequence of her dementia will likely fluctuate as (that which has already been seen) it is a fluctuating picture and not present on a continuous basis. It is likely only at those times when she is either confused and or disinhibited that her capacity to weigh up information presented to her to come to make the assessed decisions would be impaired."
And at paragraph 8(b):
"The disinhibited behaviour does not render her unable to understand, retain or use information but [to] weigh that information up prior to coming to a decision."
"By way of final comment it is now probable (from when examined on 2 May 2020) the clinical picture has now changed i.e. there has been a more obvious global deterioration as would leave the author to conclude (contrary to that which appears 1st in the report dated 1st June 2020 point 6) that the picture is likely a continuous one i.e. she is impaired probably on a continuous basis and not a fluctuating one."
The reference to "point 6" was to paragraph 6 which is set out above.
"The change, i.e. deterioration in her presentation, was evident from when previously examined by the author. Having explained the nature and purpose of the examination on several occasions in basic language she could not understand this."
He reported that he attempted to explore issues of capacity concerning the areas of decision-making under consideration, but "her responses lacked any meaningful detail." For example, questioning about financial arrangements prompted the response "no idea". As to sexual relations, AG simply said that she and CI would look after one another and she would not tolerate any further enquiry. Dr Quinn concluded firmly:
"4.3 Having met with her face to face on 29th September 2020 her superficiality, fatuous presentation and irritability when the author attempted to probe beneath the surface likely arise because of the further decline in her cognitive functioning.
4.4 The author is not now satisfied that [AG] has capacity to;
4.4.1 Make decisions about her residence.
4.4.2 Make decisions about her care and support.
4.4.3 Make decisions in relation to contact with others.
4.4.4 Make decisions about her property and affairs to include terminating her tenancy and;
4.4.5 Engage in sexual relations."
"1 The principles
The following principles apply for the purposes of this Act.
(2) A person must be assumed to have capacity unless it is established that he lacks capacity.
(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision...."
3 Inability to make decisions
(1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable
(a) to understand the information relevant to the decision,
(b) to retain that information,
(c) to use or weigh that information as part of the process of making the decision, or
(d) to communicate his decision (whether by talking, using sign language or any other means).
(2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).
(3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.
(4) The information relevant to a decision includes information about the reasonably foreseeable consequences of
(a) deciding one way or another, or
(b) failing to make the decision."
"51.i. The obligation of this Court to protect P is not confined to physical, emotional or medical welfare, it extends in all cases and at all times to the protection of P's autonomy;
ii. The healthy and moral human instinct to protect vulnerable people from unwise, indeed, potentially catastrophic decisions must never be permitted to eclipse their fundamental right to take their own decisions where they have the capacity to do so. Misguided paternalism has no place in the Court of Protection;
iii. Whatever factual similarities may arise in the case law, the Court will always be concerned to evaluate the particular decision faced by the individual (P) in every case. The framework of the Mental Capacity Act 2005 establishes a uniquely fact sensitive jurisdiction;
iv. The presumption of capacity is the paramount principle in the MCA. It can only be displaced by cogent and well-reasoned analysis;
v. The criteria for assessing capacity should be established on a realistic evaluation of what is required to understand the ambit of a particular decision by the individual in focus. The bar should never be set unnecessarily high. The criteria by which capacity is evaluated on any particular issue should not be confined within artificial or conceptual silos but applied in a way which is sensitive to the particular circumstances of the case and the individual involved, see London Borough of Tower Hamlets v NB (consent to sex) [2019] EWCOP 27. 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;
vi. It follows from the above that the weight to be given to P's expressed wishes and feelings will inevitably vary from case to case.
a. Paragraph 4.16 of the Code of Practice states, " It is important not to assess someone's understanding before they have been given relevant information about a decision. Every effort must be made to provide information in a way that is most appropriate to help the person understand". The expert's reports did not provide sufficient evidence either that AG had been given the relevant information in relation to each decision, or of the discussions the expert had had with P about the relevant information.
b. It is not a criticism of an expert that at different times they have reached different conclusions about a person's capacity. Capacity can change and new evidence may come to light. However, in this case significantly different conclusions had been reached at different times without clear explanations of why the conclusions had changed or how the evidence as a whole fitted together. Further, the change in opinion between the June report and the August letter had followed the receipt of a single further statement and without any further face to face assessment.
c. The expert's final conclusion had been reached on a broad-brush basis rather than by reference to each decision under consideration.
d. A lack of information to show how AG had been assisted to engage when the expert had "hit a brick wall" in his attempts to have a discussion with her at his final interview. The lack of information left doubt as to whether AG was incapable of understanding the purpose of the interview, whether she had been given adequate support to engage, or whether she had simply chosen not to talk to the expert.
e. A lack of a cogent explanation for why the presumption of capacity had been displaced in relation to the decisions under consideration. Conclusions were stated but not clearly explained.
"The court may give permission to file or adduce expert evidence only if satisfied that the evidence
(a) Is necessary to assist the court to resolve the issues in the proceedings; and
(b) Cannot otherwise be provided either
(i) by a rule 1.2 representative; or
(j) in a report under section 49 of the Act."
Some section 49 reports are written by psychiatrists who might, in other cases, provide an expert report under r.15. An assessment of capacity is no less important when carried out under s. 49 or by a social worker or Best Interests Assessor. What follows might be of assistance to all assessors, but it is specifically directed to r15 expert witnesses because that is the form of evidence under consideration in this case.
a. An expert report on capacity is not a clinical assessment but should seek to assist the court to determine certain identified issues. The expert should therefore pay close regard to (i) the terms of the Mental Capacity Act and Code of Practice, and (ii) the letter of instruction.
b. The letter of instruction should, as it did in this case, identify the decisions under consideration, the relevant information for each decision, the need to consider the diagnostic and functional elements of capacity, and the causal relationship between any impairment and the inability to decide. It will assist the court if the expert structures their report accordingly. If an expert witness is unsure what decisions they are being asked to consider, what the relevant information is in respect to those decisions, or any other matter relevant to the making of their report, they should ask for clarification.
c. It is important that the parties and the court can see from their reports that the expert has understood and applied the presumption of capacity and the other fundamental principles set out at section 1 of the MCA 2005.
d. In cases where the expert assesses capacity in relation to more than one decision,
i. broad-brush conclusions are unlikely to be as helpful as specific conclusions as to the capacity to make each decision;
ii. experts should ensure that their opinions in relation to each decision are consistent and coherent.
e. An expert report should not only state the expert's opinions, but also explain the basis of each opinion. The court is unlikely to give weight to an opinion unless it knows on what evidence it was based, and what reasoning led to it being formed.
f. If an expert changes their opinion on capacity following re-assessment or otherwise, they ought to provide a full explanation of why their conclusion has changed.
g. The interview with P need not be fully transcribed in the body of the report (although it might be provided in an appendix), but if the expert relies on a particular exchange or something said by P during interview, then at least an account of what was said should be included.
h. If on assessment P does not engage with the expert, then the expert is not required mechanically to ask P about each and every piece of relevant information if to do so would be obviously futile or even aggravating. However, the report should record what attempts were made to assist P to engage and what alternative strategies were used. If an expert hits a "brick wall" with P then they might want to liaise with others to formulate alternative strategies to engage P. The expert might consider what further bespoke education or support can be given to P to promote P's capacity or P's engagement in the decisions which may have to be taken on their behalf. Failure to take steps to assist P to engage and to support her in her decision-making would be contrary to the fundamental principles of the Mental Capacity Act 2005 ss 1(3) and 3(2).