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You are here: BAILII >> Databases >> England and Wales Court of Protection Decisions >> A Local Authority v H [2023] EWCOP 4 (07 February 2023) URL: https://www.bailii.org/ew/cases/EWCOP/2023/4.html Cite as: [2023] EWCOP 4 |
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Strand, London, WC2A 2LL |
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B e f o r e :
VICE PRESIDENT OF THE COURT OF PROTECTION
____________________
A Local Authority |
Applicant |
|
- and – |
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H (by her litigation friend, the Official Solicitor) |
Respondent |
____________________
Ms Sophia Roper KC (instructed by Irwin Mitchell LLP) for the Respondent
Hearing dates: 25th-26th January 2023
____________________
Crown Copyright ©
MR JUSTICE HAYDEN:
i. Residence;
ii. Care/support;
iii. Contact with others (both adults and children);
iv.Use
of the internet and social media.
Evaluating capacity
is a very important aspect of the work of the Court of Protection. In effect, it is the gateway to this court process. Unless the presumption of
capacity
is rebutted, the Court has no jurisdiction. In very rare cases, resort may be had to the Inherent Jurisdictional powers of the High Court but the application of that jurisdiction is limited. It does not arise here. Ms Roper KC, acting on behalf of the Official Solicitor, has tested the evidence in relation to
capacity
in the spheres of residence/care/support. She tells me that H does not like to be perceived as incapacitous. This is an entirely natural reaction and I understand it. There is no doubt that H expresses views on these key issues of residence and support which are, superficially, consonant with an understanding of the issues involved. Certainly, as I have commented, H accepts this rigorous regime as linked to her welfare and acquiesces to it. However, Dr S remained very clear that H has not yet achieved
capacity
, although she considered that H was progressing towards it.
"[30] From this statutory regime and the case law dealing with the statutory test the following principles can be drawn, as summarised in my decision in Kings College NHS Foundation Trust v C & V [2015] EWCOP 80 and the decision of Cobb J in WBC v Z and Anor [2016] EWCOP 4. Those principles are as follows:
i) An individual is presumed to havecapacity
pursuant to s 1(2) of the
Mental Capacity
Act 2005.
ii) The burden of proof lies with the person asserting a lack ofcapacity
and the standard of proof is the balance of probabilities.
iii) The determination of the questioncapacity
is always decision specific. All decisions, whatever their nature, fall to be evaluated within the straightforward and clear structure of ss 1 to 3 of the 2005 Act, which requires the court to have regard to 'a matter' requiring 'a decision'. There is neither need nor justification for the plain words of the state to be embellished.
iv) 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 (Mental Capacity
Act 2005 s 1(3).
v) A person is not to be treated as unable to make a decision merely because he or she makes a decision that is unwise.
vi) The outcome of the decision made is not relevant to the question of whether the person taking the decision hascapacity
for the purposes of the
Mental Capacity
Act 2005.
vii) In determining the question ofcapacity
, the court must apply the diagnostic and the functional elements of the
capacity
pursuant to ss 2 and 3 of the
Mental Capacity
Act 2005. Thus:
a) There must be an impairment of, or a disturbance in the functioning of the mind or brain (the diagnostic test); and
b) The impairment of, or disturbance in the functioning of the mind or brain must cause an inability to understand the relevant information, retain the relevant information,use
or
weigh
the relevant information as part of the process of making the decision in question or to communicate the decision made.
viii) For a person to be found to lackcapacity
there must be a causal connection between being unable to make a decision by reason of one or more of the functional elements set out in s 3(1) of the Act and the 'impairment of, or a disturbance in the functioning of, the mind or brain' required by s 2(1) of the Act.
ix) With respect to the diagnostic test, it does not matter whether the impairment or disturbance in the functioning of the mind or brain is permanent or temporary.
x) With respect to the functional test, the question for the court is not whether the person's ability to take the decision is impaired by the impairment of, or disturbance in the functioning of, the mind or brain but rather whether the person is rendered unable to make the decision by reason thereof.
xi) An inability to undertake any one of the four aspects of the decision-making process set out in s 3(1) of the 2005 Act will be sufficient for a finding of incapacity provided the inability is because of an impairment of, or a disturbance in the functioning of, the mind or brain. The information relevant to the decision includes information about the reasonably foreseeable consequences of deciding one way or another."
"(a) first, whether the person is unable to make a decision in relation to a particular matter; and only if so
(b) second, whether that inability is caused by an impairment of or disturbance in the functioning of P's mind/brain."
In practice, the evaluation commences with diagnosis directed to establish that such an impairment/disturbance exists: this is a pragmatic approach, since if there is none, the assessment need go no further. Ms Roper submits, and I agree, that following the analysis in Re JB, which reflects the earlier case law, the question of causation should only be considered if the functional inability to make the decision has been established.
"In assessing the question ofcapacity
, the court must consider all the relevant evidence. Clearly, the opinion of an independently-instructed expert will be likely to be of very considerable importance, but in many cases the evidence of other clinicians and professionals who have experience of treating and working with P will be just as important and in some cases more important. In assessing that evidence, the court must be aware of the difficulties which may arise as a result of the close professional relationship between the clinicians treating, and the key professionals working with, P.
In Oldham MBC v GW and PW [2007] EWHC 136 (Fam), a case brought under Part IV of the Children Act 1989, Ryder J referred to a 'child protection imperative', meaning 'the need to protect a vulnerable child' that for perfectly understandable reasons may lead to a lack of objectivity on the part of a treating clinician or other professional involved in caring for the child. Equally, in cases of vulnerable adults, there is a risk that all professionals involved with treating and helping that person - including, of course, a judge in the Court of Protection - may feel drawn towards an outcome that is more protective of the adult and thus, in certain circumstances, fail to carry out an assessment ofcapacity
that is detached and objective".
".. a practical limit on what needs to be envisaged as the "reasonably foreseeable consequences" of a decision, or of failing to make a decision, within section 3(4) of the MCA so that "the notional decision-making process attributed to the protected person with regard to consent to sexual relations should not become divorced from the actual decision-making process carried out in that regard on a daily basis by persons of fullcapacity
": see In re M (An Adult) (
Capacity
: Consent to Sexual Relations) at para 80. To require a potentially incapacitous person to be capable of envisaging more consequences than persons of full
capacity
would derogate from personal autonomy. [75]"
"Within the context of s 3(1)(c) it is not necessary for a person touse
and
weigh
every detail of the respective options available to them in order to demonstrate
capacity
, merely the salient factors (see CC v KK and STCC [2012] EWHC 2136 (COP) at [69]). Even though a person may be unable to
use
and
weigh
some information relevant to the decision in question, they may nonetheless be able to
use
and
weigh
other elements sufficiently to be able to make a capacitous decision (see Re SB [2013] EWHC 1417 (COP)).
It is important to note that s 3(1)(c) is engaged where a person is unable touse
and
weigh
the relevant information as part of the process of making the decision. What is required is that the person is able to employ the relevant information in the decision-making process and determine what weight to give it relative to other information required to make the decision. Where a court is satisfied that a person is able to
use
and
weigh
the relevant information, the weight to be attached to that information in the decision-making process is a matter for the decision maker. Thus, where a person is able to
use
and
weigh
the relevant information but chooses to give that information no weight when reaching the decision in question, the element of the functional test comprised by s 3(1)(c) will not be satisfied. 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."
"Matters such as potential police involvement may hold less weight for [H] than they would for a professional, who brings a different experience to the process of weighing up information."
Confronted with this intensely vulnerable young person, who is still only 18 years of age, it is also very easy for the judge to drift towards a paternalistic approach and inadvertently substitute his or her values for those of the protected party (P). Ultimately, this would be to fail H.
"Capacity
may fluctuate over time, so that a person may have
capacity
at one time but not at another. The "material time" within section 2(1) is decision-specific (see para 67 below). The question is whether P has
capacity
to make a specific decision at the time when it needs to be made. Ordinarily, as in this case, this will involve a general forward looking assessment made at the date of the hearing. However, if there is evidence of fluctuating
capacity
then that will be an appropriate qualification to the assessment."
"…In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process. Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse…"
"The interplay between articles 8 and 10 has been illuminated by the opinions in the House of Lords in Campbell v MGN limited [2004] 2 AC 457. For present purposes the decision of the House on the facts of Campbell and the differences between the majority and the minority are not material. What does, however, emerge clearly from the opinions are four propositions. First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test ..."