Re DY  EWCOP 4 is a case showing how demanding taking capacity seriously is – and should be. It concerned a young woman, whom the court had previously found to lack capacity in to make decisions about residence, care and contact, but to have capacity to make decisions about engaging in sexual relations, in face of strenuous arguments to the contrary from the local authority. Injunctive orders were then made against the woman’s former foster carer, suspected of sexually abusing DY; at a subsequent hearing, the court made a final order that DY had the capacity to make decisions relating to her use of contraception, having accepted a report from DY’s GP.
The young woman was now expecting her first child, and the local authority remained very concerned (as, importantly), did the Official Solicitor as her litigation friend) about her vulnerability to risk. The question before the court was whether she had now gained the capacity to make decisions about residence, care and contact, in circumstances where there had been an improvement in her presentation and engagement with support.
The same expert as previously instructed had initially concluded on her reassessment that DY continued to lack capacity, focusing on how DY was likely to respond after her baby was born. The parties put questions to her, asking her to focus on DY’s current capacity and arrangements were also made for the expert to have discussions with DY’s social worker.
The local authority was critical of the expert’s change of position. Whilst alive to the improvement in DY’s presentation overall it submitted that, notwithstanding the expert’s evidence, DY lacked capacity to make decisions about her residence, care and contact with others. The Official Solicitor submitted that it was entirely proper for the expert to rely on the discussions with SW when coming to a conclusion about DY’s capacity in circumstances where it was clear that the expert had struggled with the assessment exercise of a very vulnerable young woman who was less than willing to engage.
Knowles J identified that the change in the expert’s opinion “came as something of a surprise and prompted closer scrutiny of her capacity assessment, both as to process and also as to content” (paragraph 43). As to process:
44. Turning first to process considerations, the parties had agreed Dr Camden-Smith’s instruction but did not make clear in the letter of instruction that the ambit of her enquiry was restricted to DY’s current circumstances rather than what the situation would be after she had given birth. It was unfortunate that clarity was not present at this initial stage because DY’s as yet unknown future circumstances loomed large over the capacity assessment itself and distracted from a focus on the here and now.
45. Secondly, DY’s rather superficial engagement with Dr Camden-Smith made the assessment much more difficult. The November 2023 report certainly suggested that Dr Camden-Smith may have hit the “brick wall” identified by Poole J in AMDC. Dr Camden-Smith had taken great care to ensure that the circumstances in which her assessment took place were as optimal as possible and thus conducive to establishing a clear picture of DY’s capacity. Thus, DY was well-rested; communication was adapted to meet DY’s slow processing abilities; and DY was supported by her personal advisor, E. Despite these measures and despite DY’s apparently improved co-operation with Dr Camden-Smith compared to previous assessments, DY was resistant to any discussion which might illuminate her thought processes and focussed on saying things which she thought showed she could care for her baby. DY denied problems and was unable to be reflective about the nuances of her current situation. In short, she was defensive and, as Dr Camden-Smith described it in the round table meeting, “quite brittle” during interview.
46. It must be noted that Dr Camden-Smith’s assessment took place in a context where most of the professionals working with DY had seen a real improvement in her engagement and understanding and this development had prompted the capacity reassessment. Thus, the unchanged capacity conclusions in the November 2023 report caused the parties to reflect on the ambit of Dr Camden-Smith’s instructions and whether she might benefit from discussion with those who knew DY better than she did. The questions exploring Dr Camden-Smith’s November report drew attention to those matters and prompted her to speak with SW, DY’s social worker, and then to submit an addendum report which reversed her capacity assessment in respect of residence, care and support needs, and contact with others.
47. What took place following the November 2023 report from Dr Camden-Smith was an entirely appropriate process in which the parties refocussed the ambit of the capacity assessment away from the future and grounded it firmly in the present. Equally, it gave Dr Camden-Smith the opportunity to obtain much fuller information about DY’s functioning from those who knew her best. In retrospect, it might have been helpful if Dr Camden-Smith had asked for extra time to consult with DY’s professional network before she submitted her November 2023 report but I acknowledge that she was working to a deadline as the hearing was listed for 14 December and, in those circumstances, may have felt unable to do so. A further interview with DY was not required and would, I suspect, not have landed well with DY who was by then even more preoccupied with the impending birth of her baby and the plans being made by Children’s Services.
Importantly, Knowles J emphasised that:
47. In my view, it would be beneficial if expert capacity assessors ensured that, as a matter of routine, they cross-checked their conclusions by looking at the wider canvas about how a person functioned and, if possible, by speaking to those who knew the person being assessed well. This is of particular importance when their conclusions may be at variance with previous capacity assessments.
Knowles J noted that the expert had perhaps not explained her volte face as fully as she should have done, but:
50. Despite the submissions made by the local authority, I was less troubled by the apparent incompatibility between Dr Camden-Smith’s first report and her December 2023 addendum report insofar as this concerned any timescale for DY to gain capacity in the relevant matters. Dr Camden-Smith’s first report was dated December 2020, some three years earlier, and I observe that it might be expected for DY to mature with age notwithstanding her cognitive difficulties. That process was indeed plain in the social work evidence which demonstrated that DY’s often heightened emotional responses to minor life events or challenges had significantly abated with the passage of time, and particularly so during her pregnancy. Whilst that process in no way diminished the significance of the cognitive and emotional difficulties which burden DY, it assisted in understanding how she now came to have capacity in the relevant matters. I agree with Dr Camden-Smith that DY’s functioning is fragile and circumstance/relationship dependent and that she is nearly always operating at the upper limit of what she can manage cognitively.
Knowles J ultimately concluded that “the statutory presumption of capacity cannot be rebutted on the wide canvas of evidence before the court. DY has capacity at present to make decisions about her residence, care needs and contact with others. Whilst I – together with others involved with DY – have concerns that DY may lose capacity in the future, it is not appropriate to make anticipatory or contingent declarations in the circumstances of this case. I cannot predict how DY will respond to the birth of her baby and the stresses of living in a parent and baby unit but, if she loses capacity in relation to a matter, an application can be made to restore this matter to the Court of Protection” (paragraph 53).
This case serves as an important reminder that those with cognitive impairments should not be ‘written off’ by way of a capacity determination made at a single point in time, especially where the passage of time (especially combined with ongoing support) can lead to improvements. Whilst it is entirely understandable why the local authority made the arguments that it did to seek to maintain the earlier conclusions as to capacity, the willingness of the expert and, in turn (but separately) Knowles J to reassess those conclusions is heartening, even if the resulting safeguarding dilemmas are likely to occupy professional minds going forward.
More broadly, the observations by Knowles J about the need for those conducting capacity assessments to triangulate their observations by talking to others is not just of relevance to those providing capacity evidence for the court. Indeed, I have come to the conclusion that a very significant number of circumstances described as being ones where the person’s capacity fluctuates are nothing of the sort, but are rather situations where the capacity assessor does not do not do this exercise, setting up a mismatch between their observations and the experiences of those who see the person in action.