The Court of Protection is able to make decisions on behalf of a person who lacks capacity and so, one of the first things the court must consider in proceedings is whether or not the person in question has capacity or not. At the point of the case coming to the attention of the court, there must be some reason to believe that the person lacks capacity – maybe they have had a capacity assessment before, for example.
However, the test for capacity is a complicated one and so the court is careful about reaching a decision that someone lacks capacity and therefore making further decisions on their behalf. One way in which the court can get capacity evidence is by ordering a capacity report to be prepared under section 49 of the Mental Capacity Act 2005.
This section of the act allows the court to order a public body, such as an NHS trust, to nominate an expert, such as a psychiatrist, to prepare a report for the court. So, for example:
P is a young girl with a diagnosis of autistic spectrum disorder and there is some evidence, from her social worker, that says that P cannot make decisions about where she should live. However, the judge wants more evidence about this and also wants to find out if P is able to make decisions about other things, like whether to instruct a solicitor or who she should have contact with. So, the judge makes an order which requires X NHS Foundation Trust to nominate an expert to assess P and provide the court with a report confirming whether P has capacity to conduct the proceedings and to make decisions about where to live and who to have contact with.
X NHS Foundation Trust must then find an appropriate professional within their service to undertake this assessment and prepare this report, usually they will have around six weeks to do so. However, they are not allowed to charge for this work and so it must be done within their usual clinical hours.
Lately, this has been presenting a problem in Court of Protection proceedings. As we all know, the NHS is under a great deal of strain at the moment and, more than ever, fragmentation of the NHS is becoming a problem. This is resulting in significant delays in identifying which trust might be able to help and how quickly a report might be obtained in court proceedings.
As a result, court proceedings might become drawn out and stressful for the person involved and their family members. However, there are other ways to obtain capacity evidence if this is becoming a problem. For example, there is the option of getting a social worker – even an independent social worker or one from another local council – to prepare the report. Or, alternatively, an independent expert could be instructed. There are also steps that could be taken to assist a trust in complying with the order or persuading them to do so.