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Successful challenge to a mental capacity assessment by the local authority

Court of Protection decides that man with irreversible stoma has the right to choose to die

Specialist Court of Protection solicitor, Amy Dutton, recently represented a vulnerable adult who had been assessed to lack capacity to make decisions regarding his residence and care following a stroke, and subsequently deprived of his liberty at a care home following his discharge from hospital.

The case concerned GL, who suffered from cerebral-vascular disease and other cognitive problems resulting from historic alcohol abuse. GL was detained at the care home by way of a standard authorisation pursuant to Schedule A1 Mental Capacity Act 2005 (‘the act’).

In circumstances where a care home or other care setting considers it necessary to deprive somebody of their liberty, they must request for this to be authorised by the supervisory body (usually the local authority). The supervisory body must then undertake a series of assessments to consider whether specific conditions are met in order to authorise a deprivation of liberty under the Deprivation of Liberty Safeguards (DOLs), such as whether the person is suffering from a mental disorder and whether the proposed restrictions would be in the persons best interests. If all the conditions are met following these assessments, the supervisory body must authorise the deprivation of liberty.

The assessments to be undertaken by the supervisory body also include a mental capacity assessment of whether the individual is able to consent to their residence and care arrangements. No one can be deprived of their liberty lawfully by a public body in a care home or other care setting if they have capacity to decide to consent (or not) to those arrangements.

GL was deprived of his liberty at the care home. He was consistently objecting to the deprivation of his liberty on the basis that this took away his freedom, and we were therefore approached by his IMCA (Independent Mental Capacity Advocate) and RPR (Relevant Persons Representative). When a standard authorisation is granted, the supervisory body must ensure that a RPR is appointed and their role is to 1) maintain contact with the relevant person, and 2) to represent and support them in matters relating to the deprivation of liberty, including making an application to the Court of Protection where necessary. We were instructed by GL’s RPR to make an application to the Court of Protection to challenge the deprivation of his liberty at the care home, pursuant to s21A of the Act.

We visited GL and analysed the capacity evidence relied upon by the local authority, which we considered to be insufficient. We issued an application to the Court of Protection to challenge the capacity evidence. The court ordered the respondent local authority to file and serve, amongst other documents, an updated mental capacity assessment in respect of GL’s capacity to make decisions in respect of his residence and care needs.

The updated capacity assessment carried out by GL’s social worker was obtained prior to the first hearing, as we minimised delays for GL in requesting this at the very outset of the proceedings after meeting with him and challenging the capacity evidence in the grounds to our application to the court. The outcome of the requested re-assessment was that the social worker assessed GL to have capacity to make decisions in respect of his residence and care. Even despite this, it was still argued by the respondent local authority at the court hearing that further evidence was required to affect a discharge of the standard authorisation.

The key issue for the court to determine during the hearing was whether the mental capacity requirement was in fact met, following consideration of the social worker’s recent capacity assessment, in accordance with paragraph 15 Schedule A1 of the act. On behalf of GL, we argued that it was not that GL had capacity and so the authorisation depriving him of his liberty should be discharged.

Several issues were brought to the court’s attention, including the analysis in the case of DP v Hillingdon [2020] EWCOP 45, 39-41, which states that the court should only grant an interim order to gather further information (such as additional capacity evidence) if there is a clear evidential basis to do so. It was also submitted on behalf of GL that the previous assessments concluding that he lacked capacity were predicated on reviewing records and assessments carried out via telephone (due to public health measures in place at the time as a result of covid-19) rather than a thorough in-person assessment with GL at the care home.

In addition, it was clear that whilst GL would ultimately prefer to return home, he was realistic about his prospects of doing so and recognised that he required a level of support that only a care home setting could provide.

It was noted by the court that, when GL was asked why he wanted to pursue a s21a challenge if he was content to remain at the care home, his response was simply that he was deprived of his human rights as a result of the standard authorisation being in place. According to Article 5 of the European Convention on Human Rights, everybody has the right to personal liberty and should not be deprived of their liberty in an arbitrary fashion – unless they are of unsound mind and the deprivation is in accordance with a procedure prescribed by law.

The court concluded that there was a sufficiently clear evidential basis to conclude, on balance, that the most recent capacity assessment carried out by the social worker can be relied upon and provides clear evidence that GL has capacity to make his own decisions about his residence and care.

Therefore, the court ordered that the mental capacity requirement in paragraph 15 Schedule A1 of the Act was not met, and subsequently the standard authorisation was discharged.

During post-hearing discussions, we considered that the practicalities of the decision were simply that the care home would no longer have lawful authority to detain GL. In practical terms, GL’s mobility meant that he was unable to leave the care home without support (which he acknowledged) and whilst little would change for him day-to-day, he would no longer be deprived of his liberty by law. He was free to leave, should he decide to do so.

The case highlights the importance of getting mental capacity assessments right and the importance of a thorough, face to face assessment being undertaken where possible. The Court of Protection is there to not only protect the rights of vulnerable adults, but to empower them to make decisions. There is a presumption that we all have mental capacity in s1(2) of the act, and the onus is on the public bodies alleging a lack of capacity to sufficiently prove otherwise. Our Court of Protection team have expertise in advising upon and challenging capacity assessments.

If you are a RPR, IMCA or an family member of a vulnerable adult and there is a dispute about issues relating to the capacity, health and welfare or the individual (such as the individual’s residence, care or contact with others), please do not hesitate to contact our specialist mental capacity and Court of Protection solicitors on 01616 966 229. Our team of specialist solicitors regularly advise on all aspects of mental capacity decisions and disputes, best interest meetings and disagreements, and provide representation to both vulnerable adults and family members in court proceedings. Legal aid funding is available, subject to eligibility.