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SPOTLIGHT |
A recently-published Court of Protection ruling is helpful for capacity assessors as to what is relevant and not relevant when assessing an individual's capacity to make certain decisions.
The long-running proceedings in LBX v K, L, M [2013] EWHC 3230 (Fam) and [2013] EWHC 4170 (Fam) (Theis J) began nearly six years ago, the previous judgments being [2010] EWHC 2422, [2011] EWHC 2419, [2012] EWCA Civ 79, [2012] EWHC 439.
L was born in 1983 and had learning disabilities with an IQ of 59. His incapacity to decide on residence, care and contact was not previously in dispute but was considered to be borderline. In the first judgment, reported at [2013] EWHC 3230 (Fam) (but only recently made publicly available), Theis J concluded that a further assessment of L’s capacity was required. Five months later, in the second judgment, reported at [2013] EWHC 4170 (Fam), L was found to have capacity but the inherent jurisdiction was invoked to protect him.
In the first judgment, the capacity assessment of a social worker was preferred to that of a doctor. The court highlighted the need for evidencing a clear rationale; guarding against imposing too high a test of capacity; the importance of using tangible resources, like drawings and pictures, to assess and improve the person’s level of understanding; and clearly articulating the information relevant to the decision. MCA s.3(4) refers to “reasonably foreseeable consequences” only and such information will of course differ according to the decision. But it may assist capacity assessors to know what information was and was not relevant when assessing L’s capacity to make the following decisions.
Capacity to decide as to residence:
Relevant:
Not relevant:
Capacity to decide as to contact with others:
Relevant:
Not relevant:
Capacity to decide on care:
Relevant:
Not relevant:
The judge accordingly required capacity to be investigated further before the court could finally determine the application. By the time of the second judgment, five months later, L was judged to have capacity to decide on residence, care and contact, although it was still borderline.
Theis J observed that L remained vulnerable to overwhelming emotional issues which could compromise his capacity. Emotional safety would best promote his retention of capacity. And this required “a proportionate structure in place that enables him to be able to maintain his capacity in a relatively calm environment, and free from the emotional maelstrom, as I have described it, resulting from the relationship that he has with his father in particular, and the relationship the father has with those who support L in the care that he has.” Accordingly, invoking the inherent jurisdiction, her Ladyship made orders which restricted L’s father from having contact with him and his care team.
Comment
These KLM decisions are very useful in terms of breaking down the core components of relevant and irrelevant information to three classes of decision. Insofar as they relate to residence, the first decision can usefully be read with the decision in LB Islington v QC.
They also highlight the importance of the second statutory principle, to take all practicable steps to help the person decide. The assumption of, and being required to max-out the prospects of, having capacity are key to the promotion of autonomy. They illustrate that, with proper care and attention, someone of borderline capacity may regain and thereafter retain the ability to decide for themselves. Moreover, it is important for capacity assessors to identify the salient details of the relevant decision. And the first judgment provides a very helpful illustration for practitioners. Crucially, the bar must not be set too high. We must not expect more from those with mental impairments than we do from those without. Otherwise Article 8 – embodying as it does many aspects of our free society – will not be universal.
The second, inherent jurisdiction, decision exemplifies how the great safety net can be invoked to set out the parameters to enable people to be unencumbered by others’ influences so as to decide for themselves. This is – we suggest – precisely how the inherent jurisdiction is intended to operate (and is therefore to be contrasted with the decision in NCC v PB and TB [2014] EWCOP 14.
This article was written by the Court of Protection team at 39 Essex Street.