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Capacity and executive (dys)function

In a recent case a consultant forensic and clinical psychologist revised their initial view that a man on a Community Treatment Order had litigation capacity while lacking subject matter capacity. The Court of Protection team 39 Essex Chambers analyses the case.

The case of Sunderland City Council v AS and Others [2020] EWCOP 13 (Cobb J) concerned the capacity of AS, a man on a Community Treatment Order pursuant to the Mental Health Act 1983. AS had a diagnosis of mild learning disability, acquired brain injury, bipolar disorder and personality disorder traits. He exhibited what was described as challenging behaviour and as being resistant to his care plan. He resided in supported accommodation with other vulnerable service users, requiring him to be supervised at all times given the risk he posed to them.

Cobb J received a range of evidence, including a report from a jointly instructed consultant forensic and clinical psychologist Dr Stephanie Hill, and unsworn evidence of AS given from the witness box.

Dr Hill had initially taken the view that AS had litigation capacity while lacking subject matter capacity, and that his capacity fluctuated, in that when calm he had capacity but when aroused, lacked it. In the final analysis, however, Dr Hill concluded that AS in fact lacked capacity to make decisions about litigation, residence, care and contact with others on a permanent (as opposed to fluctuating) basis.

By the end of the oral evidence, all the parties (including the Official Solicitor on behalf of AS) agreed that AS lacked capacity in all of the areas outlined in the judgment. Dr Hill confirmed that no amount of further information would be likely to make the difference to AS's ability to exercise capacitous decision-making and that this lack of capacity was permanent. Having heard Dr Hill's oral evidence, and her thoughtful revision of her earlier-expressed views, Cobb J was satisfied that the evidence displaced the presumption of capacity in relation to AS's decision-making on residence, contact, care and in respect of this litigation.

Cobb J also found that AS was deprived of his liberty, but that this was justified and should be authorised by way of making an order under s.16(2)(a) MCA 2005.

Comment

Cobb J accepted the submission made by the local authority that part of the relevant information AS was required to be able to process to have the capacity to make decisions about residence included the structure and routine that living in a supported living placement provided as compared to living independently in the community. While in some respects it could be said that the structure and routine is part of the care package, following the Court of Appeal case of B v A Local Authority [2019] EWCA Civ 913 in which the Court warned against considering capacity in silos, this is undoubtedly the correct approach.

The second notable issue raised in this decision is Dr Hill’s reliance on the NICE guidance on decision making which highlights the difficulties in assessing the capacity of people with executive dysfunction, cautioning that as well as an interview-style assessment, real-world observation of the person’s decision making may be required to get a full picture of capacity. When incorporating this into the assessment of AS’s capacity, Dr Hill moved from a conclusion that AS’s capacity fluctuated (i.e. he had capacity when calm, but lacked it when aroused in the real world) to concluding that in fact, he lacked decision-making capacity on care and residence. Dr Hill’s change of view appears to have arisen from her stepping back and considering AS’s capacity on a more macro level saying about care: “When I looked at my reasoning in relation to care, I realise that I have over-emphasised his ability to look at care plans and specifics…… AS does not understand that as a concept in relation to his overall well-being. AS is very concrete in his thinking, and very focused on immediacy, and he struggles with the overarching structure.” [our emphasis].

It is suggested that by stepping back and asking whether P can process the concept and structures around residence and care, rather than focusing on the more ‘micro’ questions about the specifics of the care plan or the kind of accommodation, the assessor is less likely to assess interrelating issues in silos and so come to contradictory and unworkable conclusions on capacity.

This article was written by the Court of Protection team at 39 Essex Chambers.

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