Reporting upon capacity for the court (and more broadly) – what (not) to do

The decision in AMDC v AG & Anor [2020] EWCOP 58 serves as an important reminder of how demanding the process of assessing and reporting upon capacity is – or should be.   The case concerned a 68 year old woman, AG, whose capacity was asserted by the local authority applicant to be lacking in respect of a broad number of welfare-related domains, as well as the management of her property.  However, on the second day of the final hearing of the application, following the conclusion of the oral evidence of the jointly instructed expert, the local authority informed the court that it did not consider that it could rely upon this evidence – the sole evidence before the court – to prove that AG lacked capacity in the material respects.

All the parties agreed that, although further delay in determining capacity was very regrettable, it was necessary for instructions to be given to a fresh expert to report to the court. As Poole J identified, this was not a case in which the application could simply be dismissed for lack of evidence.  Importantly, he founded himself upon the following observations by Baker J, as he then was, Cheshire West and Cheshire Council v P [2011] EWCOP 1330 (at paragraph 52):

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.

Poole J was satisfied that, notwithstanding the concerns about the expert opinion evidence, the evidence as a whole established that there was reason to believe that AG lacked capacity to make the decisions under consideration and that it was in her best interests to make interim orders and directions.  Poole J therefore 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 deprived AG of her liberty and interfered with her Article 8 rights. Amongst other restrictions, the ongoing regime which the court had authorised to continue until the final determination of this case effectively prevented 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, Poole J was invited to and agreed to give an interim judgment.

The expert, Dr Quinn, had given evidence on many previous occasions.  However, in this case, Poole J noted that “[h]is evidence left the parties, the court, and even Dr Quinn himself, with some ‘disquiet’.”  Poole J made clear that he was not questioning Dr Quinn’s professionalism, expertise or conduct, but rather that he shared the concerns raised with him in questioning at the hearing relating to his reports, including (as set out at paragraph 24), the following:

(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.

    1. 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.

Poole J then indicated that it might be helpful to provide some indications of how experts’ reports on capacity in a case such as this could best assist the court. In doing so, he emphasised that he did not wish to be prescriptive about the form and content of reports – the Court of Protection Rules r15 and the Practice Direction 15A should of course be followed by all experts and those instructing them.  He also refrained from commenting upon the way an expert should interview or assess P – those are matters for the expert’s professional judgment. As he noted at paragraph 26, “[t]he inquiry into capacity will vary considerably from case to case, and experts must always be sensitive to what is required for the individual assessment in which they are engaged.”  Poole J was also “mindful of the very recently [5 November 2020] published final report of the President’s Working Group on Medical Experts in the Family Courts, in which Mr Justice Williams and his working group highlight the pressures on expert witnesses that surely apply also to those giving evidence in the Court of Protection – the rates of remuneration, the lack of support and training, the court processes and perceived criticism by lawyers, judiciary and the press.”  It was therefore “with due care therefore that I provide the following comments which are intended merely to assist experts when writing reports in cases such as the present one. The Working Group recommends constructive feedback to encourage good practice.”

Poole J started by reminding himself that expert evidence under COPR r.15 was by no means the only way in which capacity assessments are provided to the court.  He noted, in particular, that some s.49 reports are written by psychiatrists who might, in other cases, provide an expert report under r.15.  Importantly, he reminded himself at paragraph 27 that “[a]n assessment of capacity is no less important when carried out under s. 49 or by a social worker or Best Interests Assessor.”  The guidance that he then set out he indicated “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.”

28. When providing written reports to the court on P’s capacity, it will benefit the court if the expert bears in mind the following:

(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).

As Poole J noted in concluding at paragraph 29, “[t]he newly instructed expert in this case may or may not reach the same conclusions as Dr Quinn, but it will be important that the parties and the court can see from their report that the fundamental principles of the MCA 2005 have been followed, that proper steps have been taken to support AG’s decision-making and participation in the assessment, and that the conclusions reached are adequately explained.”

Comment

Poole J has only very recently been appointed to the High Court bench, and then to sit as a nominated judge of the Court of Protection, but he has – with respect – come sprinting out of the starting blocks.  The guidance given in this judgment is crisp, clear and immensely helpful, not just for those completing expert reports for the purposes of the Court of Protection, but for anyone completing a capacity determination.   The comments amplify the equally helpful observations of the (Australian) judge, Mr Justice Bell in PBU  and NJE v Mental Health Tribunal (relating to medical treatment, but equally applicable to other contexts) that

The fundamental principles of self-determination, freedom from non-consensual medical treatment and personal inviolability, and the equally fundamental principles behind the right to health, are most respected by capacity assessments that are criteria-focussed, evidence-based, person-centred and non-judgmental. Such assessments engage with the demand (or plea) of the person to be understood for who they are, free of pre-judgment and stereotype, in the context of a decision about their own body and private life.

Particularly welcome, for my part, are three points in particular:

  1. The distinction that Poole J draws between “assessment” – the process of thinking about P – and “report” – the record of the conclusions of that thinking process. In our capacity guide we talk about “determination” rather than “report,” but we equally seek to draw a distinction between the two concepts.  Using the term “assessment” to cover both the process of thinking and the process of recording the conclusions of that thinking is dangerous for two reasons: (1) many “capacity assessment” forms are predicated on the basis that they are simply records of why P does not have capacity, as opposed, which is pre-loading the position; and (2) it can lead people to forget that assessment is a process which needs to be continued for as long as is required until it is possible to reach a conclusion;
  2. The reminder of the fact that experts, as much as those involved in the day to day care, treatment or affairs of P, are bound to take practicable steps to support them before reaching the conclusion that they lack capacity in any material domain; and
  3. The reminder that capacity assessments, including those prepared for the court, are not the sole domain of psychiatrists, as this is an ongoing, and unhelpful, myth.

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One Reply to “Reporting upon capacity for the court (and more broadly) – what (not) to do”

  1. Two points:
    1. It was obvious from those of us who watched Dr Quinn being cross questioned in court that he had struggled to engage this particular P in the “process” of capacity assessment, because she was not willing to discuss with him the information relevant to decisions about (for example) where she might live, or sexual contact. As he said in court, “I was drawing a blank in terms of having any detailed discussion with her”. This is not, in and of itself, evidence of lack of her capacity to have these discussions. It is helpful to consider how to proceed when particular assessors find they have (using words from the hearing) “run into a brick wall of cooperation” – where someone else might find it easier to engage the person. In this case, AG’s partner (who also watched much of the hearing from a tablet in the care home) suggested that a female assessor might be more suitable.
    2. You say that the ongoing regime, predicated upon the interim decision that there is reason to believe that AG lacks capacity to engage in sexual relations, has “effectively prevented AG from engaging in sexual intercourse”. My understanding is that it actually prevents AG from engaging in any other kind of intimacy stopping well short of sexual intercourse. During the hearing, Poole J expressed that view that AG “clearly enjoys kisses and cuddles and it would be a shame if the regime in place were to prevent her from any form of affectionate contact with him.” Ben McCormack (counsel for AG’s partner) said that the Sexual Offences Act 2003

    “sets a low threshold for an offence to be committed, so once the court makes an interim decision that P may lack capacity to engage in sexual relations, one needs to be very careful about permitting anything that could be seen as constituting sexual touch.”

    Our blog post about the hearing is here: https://openjusticecourtofprotection.org/2020/11/03/when-expert-evidence-fails/

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