Updated Guidance From The Court Of Protection On Capacity Assessments And Reports

• Published date: 04 December 2020
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: Hill Dickinson
• Author: Leila Souss and Leah Selkirk

The decision in AMDC -v- AG & Anor [2020] sets out the importance of implementing a thorough and structured process in dealing with capacity assessments and reports.

The case concerned AG, a 68 year-old woman, and her capacity to make decisions pertaining to various issues. As part of the proceedings, the parties jointly instructed a psychiatric expert to assess AG's capacity. The case stresses the importance of parties and the court being able to identify that the fundamental principles of the MCA 2005 have been followed in expert reports, that proper steps have been taken to support P's decision-making and engagement in the assessment, and that conclusions reached are adequately explained.

The concerns relating to the expert's evidence included the following:

• The report 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 her about the relevant information;
• Different conclusions were reached at different times without clear explanations of why the conclusions had changed or how the evidence, as a whole, fitted together;
• The expert's final conclusion had been reached on a broad-brush basis rather than by reference to each decision under consideration;
• There was a lack of information to show how AG had been assisted to engage. This left doubts 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 speak to the expert;
• There was a lack of cogent explanations for why the presumption of capacity had been displaced in relation to the decisions under consideration. Conclusions were stated but not clearly explained.

A resumed hearing is fixed for January 2021 with directions for fresh capacity evidence from a new expert.

Poole J set out helpful guidance on how written reports on capacity could best benefit the court:

• 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 the terms of the Mental Capacity Act 2005 (MCA) and Code of Practice and the letter of instruction.
• The letter of instruction should 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...