Ahead of more detailed coverage of the nuances of this complicated case in the February 2025 Mental Capacity Report, it is worth highlighting the ‘lessons learned’ section of the judgment of Theis J in Oldham Metropolitan Borough Council v KZ & Ors [2024] EWCOP 72 (T3) concerned the assessment of capacity of D/deaf individuals:
96. As regards wider issues concerning the assessment of mental capacity of deaf individuals the following should be an essential part of any such assessment. The experience in this case demonstrates the use of a non-specialist expert is not an appropriate substitute for the specialist assessment and risks incorrect conclusions regarding capacity being reached. Where an assessment is required the following considerations should guide any assessment of a deaf individual fluent in BSL:
(1) Any mental capacity assessment of a deaf individual fluent in BSL should ideally be undertaken by an assessor who is suitably qualified to communicate at the relevant level of BSL. If that is not done, there should be a clear explanation why and what measures, if any, are proposed to be in place to manage that gap.
(2) The assessor should ideally have a background in understanding deafness and engaging with the deaf community. If they don’t, there should be a clear explanation why they are undertaking the assessment without such knowledge.
97. These essential steps should prevent the difficulties encountered in this case occurring again. They accord with the wider provisions regarding expert evidence in Part 15 Court of Protection Rules 2017 which make clear ‘it is the duty of an expert to help the court on matters within his own expertise’(emphasis added) (PD15A paragraph 2). There is an obligation on those proposing an expert instruction, and on the expert themselves, to make sure that expert has the requisite expertise to prepare the expert report being sought.
The observations in paragraph 97 relate to proceedings before the Court of Protection; the observations in paragraph 96 apply across the board.
