Judge: HHJ Anderson
Citation:  EWCOP 43
This case is the sequel to the decision  EWCOP 32 that we reported previously, concerning a 30-year-old woman with moderate intellectual disability. In May 2020, HHJ Richardson made a direction for an independent expert psychiatrist to assess SB’s capacity to make decisions about contact with other people. The Official Solicitor then made an application for this to be discharged and the proceedings brought to an end. The basis of the application was the belief of the Official Solicitor that SB does not wish to take part in a further assessment and would find it distressing and intrusive. The local authority supported the application.
HHJ Anderson, before whom the application came, met SB by telephone, in the presence of her solicitor Ms H. She had asked to see the judge. In simple terms she stated that she wanted the proceedings to continue, there was a need for assessment, she was not prepared to be assessed by a Dr O’D but would be prepared to be assessed by a different doctor.
HHJ Anderson acceded to the application, primarily because no party wished the court to make any decisions about best interests in relation to SB’s contact with others. Nor was there any evidence before her that the woman was currently at risk from third parties or was engaged in activity which will draw them to her.
SB’s mother submitted that she:
In terms of the impact upon SB, HHJ Anderson considered that there was a:
“17. […] real risk to SB’s emotional well-being if I allow such an assessment to proceed. SB now says to me that she is content to see another doctor. Therefore, I can assume that if I allow such an assessment she would cooperate. However, I note the evidence of both the social worker and SB’s solicitor that SB has engaged less with them since the further work was ordered. She has told her solicitor that she finds questions from professionals distressing. I also take into account the evidence of the social worker that the involvement of a new professional is likely to cause SB distress, as all contact with professionals appears to do. The introduction of a new professional and therefore going over very difficult matters in SB’s past, which she has perhaps covered with others, will be likely to cause SB anxiety and distress and increase the risk of emotional harm to SB. It cannot be said that the process will have a therapeutic element. It is purely discussion for assessment purposes and will not necessarily have any intrinsic benefit to SB. I take into account that when SB spoke to me she indicated a willingness to take part in a further assessment. However, SB also mentioned her wish to have the care of her son. She said, “if I have capacity I don’t get and understand why I shouldn’t have my son living with me now”. I have a very real concern that SB was confusing the proposed assessment with an assessment relating to contact with her child.
HHJ Anderson observed that, given the time specific nature of capacity, it would be appropriate for any capacity assessment to be undertaken if and when a specific concern about SB’s contact with others arose.
This case is a helpful reminder both that capacity assessment is not an entirely ‘neutral’ process, nor do questions of capacity arise in the abstract; capacity assessments should therefore only be ordered if something is actually going to turn on them.