Re SB (Capacity Assessment)
Summary
This case is the sequel to the decision [2020] 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:
- […] spends a lot of time communicating with people on social media and that she is very evasive when asked by her mother who she has been communicating with. I note that I have not seen any evidence from AB to this effect. I have not seen any evidence that there is a perceived risk from any specific individual or group of individuals as a result of this pastime. Furthermore, I have been reminded that SB has capacity to access the Internet and social media and is entitled to do so. I accept the submission of the Official Solicitor that it would not be unusual for a 30-year-old woman with capacity to engage in social media to be reluctant to inform her mother about the detail of those communications.
"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.
[…]
- Bearing in mind that the court is not being asked to make any decisions about SB's contact with others it would not be in her interests for me to direct that there be such an assessment. I consider that the level of anxiety and distress which would be caused by repeated conversations about very difficult matters is now likely to outweigh any perceived benefits.
Comment
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.
