Court of Protection judge hands down ruling on capacity amid “some unhelpful differences of approach to the diagnosis of Learning Disability amongst healthcare professionals”

A Court of Protection judge has determined that a man lacks capacity to make decisions about where he lives, his care, and his use of the internet and social media.

The decision was made following differences of approach to the diagnosis of Learning Disability amongst healthcare professionals.

In TW v Middlesbrough Council [2023] EWCOP 30 Miss Katie Gollop KC, sitting as a deputy High Court judge, said the application concerned a man in his mid-fifties, referred to as ‘Tony’, who has cerebral palsy and was born profoundly deaf.

It was revealed that Tony has a “long history” of using the internet to access images of child sexual abuse.

The judge said that for many years, professionals concerned with Tony’s best interests have supported him on the basis that he has a mild Learning Disability.

However, she noted that the diagnosis was “called into question” in May 2022 by Dr O'Rourke, consultant clinical psychologist, after she undertook psychometric testing and identified that Tony’s IQ is in the low average range, meaning that he does not meet one of the three mandatory diagnostic criteria.

Before Dr O’Rourke’s May 2022 report, preparations had been underway for Tony to move from Placement 1 to Placement 2. Placement 2 is a five bedded residential care home exclusively for male adults at risk of coming into contact with the criminal justice system as a result of their offending behaviour.

However, Placement 2’s registration with the Care Quality Commission requires that its service is accessible only by male residents with Learning Disability.

Judge Gollop said: “Since being advised of Dr O'Rourke's conclusion in May 2022, and at the start of the hearing in June 2023, Placement 2’s position was that it would not be able to accept Tony as a client unless he had a formal diagnosis. Accordingly, his transition to Placement 2 had had to be put on hold, and the respondent Council had been paying to keep his place there open for over a year pending the court’s determination of this application.”

The judge said that Tony was born with cerebral palsy which affects the movements of his head, trunk and hands in particular. He was also born profoundly deaf. In 2017 he fractured his spine, and he has been a wheelchair user since then.

Between birth and the age of 20 years, Tony went to nurseries and schools in different parts of England and Wales. The judge noted that though he was taught a form of signing, “all of these establishments were for hearing children because priority was given to meeting his physical rather than his communication needs. It follows that Tony grew up with no exposure at all to his deaf peers.”

At 20 years old, Tony went to live at a facility for deaf people. In his thirties, he went to college and learned computer skills. He was thought to have a short attention span and to lack capacity to live independently, said the judge.

Testing of intellectual and adaptive functioning was undertaken and the conclusion was that overall, he did not have a learning disability.

In 2011, Tony moved into his own flat supported by carers who came in every day and that arrangement worked well for just under three years, said the judge.

In 2014, staff reported to the police that Tony had been accessing images of child sexual abuse and his devices were seized. He assaulted his social worker by biting her, he signed that he needed help with his mental health, and he made desperate attempts to get access to a computer.

In 2021, a group of professionals from the Adult Learning Disability team completed an assessment of his capacity to use the internet.

“The group agreed that he was unable to understand and weigh up the consequences of looking at such images and took the view that functionally he had a learning disability”, said the judge.

In 2022, it was found by the expert evidence in the proceedings that Tony did not meet the “formal criteria” for a diagnosis of a learning disability.

Looking at Dr O’Rourke’s Evidence, Judge Gollop noted that she is a “national, if not international” expert in her field, and she gave evidence with “very considerable authority”.

Dr O’Rourke made her assessment of Tony’s capacity in accordance with the 2015 Guidance on the Assessment and Diagnosis of Intellectual Disabilities in Adulthood published by the British Psychological Society (“the BPS Guidance”).

The guidance recommends that “a judgement as to whether or not an individual has an intellectual disability should only be made when all three components of the assessment are carried out by an appropriately qualified professional, who is able to justify their opinion in accordance with this guidance. This would reduce confusion for individuals, families and services”.

The three criteria necessary to an assessment of learning disability are:

1. a significant impairment of intellectual functioning; and
2. a significant impairment of adaptive behaviour (social functioning); with
3. both impairments arising before adulthood.

In July 2022, Dr O’Rourke explained that when she administered the updated tests in 2022, Tony scored in the low average range for IQ, on the fourteenth centile, and therefore “did not meet the criteria in the BPS Guidance for a diagnosis of Learning Disability”.

Elaborating on this, she said: “The fact that he can learn computer skills, adapt his signing to meet my needs, understand humour and answer questions involving ‘why?’, all support the notion that he does not have a learning disability. However, there are clear deficits in understanding of more abstract and complex matters and impairments in adaptive functioning, most notably a lack of insight into his own needs and matters concerning risk.”

She continued: “This discrepancy and his very obvious difficulties in adaptive functioning are a result of lack of access to formal and incidental learning, lack of opportunity and impoverished linguistic environments which did not afford him the opportunity to develop.”

The judge said that the court was told that two other clinicians rejected Dr O’Rourke’s opinion that Tony cannot properly be diagnosed with a Learning Disability.

The respondent council reported that in June 2021, within the Deprivation of Liberty Safeguards process, a GP had assessed him as having a mild Learning Disability.

Outlining the issues posed by the differences of opinion among the healthcare professionals, Judge Gollop said: “The present case demonstrates there will be occasions when P’s welfare is compromised if there is confusion about whether all three criteria are met, and a lack of robust evidence supporting any diagnosis”.

She added: “It may perhaps be helpful if healthcare professionals recording that a person has a learning disability (with or without capital letters) go on to state whether that assessment is “within BPS Guidance” or “outside BPS Guidance”.”

The judge referred to the Mental Capacity Act 2005, which states:

“(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

(2) It does not matter whether the impairment or disturbance is permanent or temporary.

(3) A lack of capacity cannot be established merely by reference to -

(a)  a person's age or appearance, or

(b)  a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.

(4) In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.

Judge Gollop concluded that she was satisfied that on a balance of probabilities, Tony lacks capacity to decide: whether to live at Placement 1 or Placement 2, who should care for him and the type of care and support he receives, and what use to make of the internet and social media.

She added: “In relation to each decision, the inability exists by reason of an impairment in the functioning of his mind or brain. The impairment, which operates as a functional learning disability, is the result of stunted mental development, occurring before the age of 18 years, as a result of prolonged deprivation of communication, education, social learning and life experience, in combination with institutionalisation.”

She noted that the impairment renders Tony “unable to understand why accessing images of child sexual abuse is wrong”, the potential consequences for him if the police are involved, and the harm caused to children directly and to wider society indirectly by his actions when he is allowed unrestricted, unsupervised internet access.

The judge authorised a resumption of Tony’s transition to Placement 2, “pending final determination of his best interests in relation to residence, care, support, and use of the internet and social media”.

Dr O’Rourke agreed to endorse a diagnosis of functional learning disability, since the proposed placement would only accept him with a formal Learning Disability diagnosis.

The judge revealed that the respondent council made enquiries of Placement 2 “which confirmed that that formulation would suffice to enable them to offer Tony a place (subject to regularisation of registration requirements with the CQC)”.

The court ordered that his access to the internet be restricted and supervised to prevent access to images of child sexual abuse, but that it would be going too far to agree the Official Solicitor's request that the prohibition include "criminal adjacent" images of children – for example “children in swimming costumes in a paddling pool”.

Miss Katie Gollop KC added: “It appeared to me that viewing or possession of such images may not be unlawful, that such a measure could be unduly restrictive, and in any event may be difficult to justify in circumstances where Tony is currently choosing not to use a screen at all whilst supervised.”

Lottie Winson