Oldham MBC v KZ (Fluctuating Capacity: Anticipatory Declaration)
Summary
This case is a salutary tale in which a failure to provide a Deaf young man with a suitably equipped translator and/or assessor very nearly had the effect of writing off the abilities he had and seriously underestimating his capacity to make decisions for himself. The Vice President, Theis J, also had to grapple with the role of anticipatory declarations and when they might be permitted under the MCA.
KZ was 20 years old at the time of judgment but had been the subject of proceedings since his late teens. One of five children who appeared to have lived between Pakistan and Spain before moving to the UK, KZ was described as deaf, with a cochlear implant but resistant to its use: he is recorded as preferring to communicate in British Sign Language (BSL), notwithstanding that his parents, with whom he lived for the first half of his life, did not sign at all.
Theis J’s judgment describes a number of years of a problematic home life: KZ living in hotel rooms with his father, excluded from placements, exhibiting sexualised behaviours, arrested on stalking offences and considered a potential risk to others. From 2021 onwards KZ is recorded as attending a specialist school with 2:1 carers, some of whom are noted to be BSL trained.
In 2021, applications for deprivation of liberty authorisations were made and capacity assessments were first carried out. KZ was assessed by Dr Lisa Rippon as lacking capacity in all relevant areas – residence, care, contact, engaging in sexual relations and receiving a covid vaccination. In a move a later assessor described as “frankly astonishing” (paragraph 95), Dr Rippon was assisted in producing her report by the BSL Level 1 qualified service manager at KZ’s placement acting as translator. BSL level 1 effectively means understanding a limited range of simple words and sentences enabling the user to give and follow simple directions or instructions or provide simple familiar statements or descriptions. It does not obviously equip an individual to provide translation support for an assessment of mental capacity across a broad spectrum of decision-making.
Nonetheless, the Dr Rippon carried out the assessment on KZ and concluded as a result that he was suffering from a “borderline learning disability” as well as some autistic features (paragraph 47).
As a result of Dr Rippon’s conclusions (and it should be noted that the judgment does not include any criticism of Dr Rippon personally), according to Theis J, proceedings “nearly concluded in January 2024 on the basis of expert evidence regarding KZ's capacity that stated he lacked capacity in all relevant areas, including residence, care and support and contact” (paragraph 2).
Following a move to a new placement, concerns were raised regarding the capacity assessment, regarding both the conclusions reached and the manner in which the assessment had been carried out. A further assessment was ordered. This assessment was carried out by a Clinical Psychologist with specific expertise in assessing deaf people, Dr O’Rourke, acting with the support of a Registered Sign Language Interpreter.
Dr O’Rourke’s conclusions were markedly different from her predecessor’s. She concluded that KZ was “very far from the diagnosis of a learning disability” (paragraph 50(1). Rather, she diagnosed KZ as suffering from “extreme language deprivation” which, albeit that it did compromise his ability in a number of domains, left undisturbed his capacity to make decisions about his residence and his contact with his parents.
The Vice President gave the following guidance for the assessment of capacity in deaf in future cases.
96. As regards wider issues concerning the assessment of mental capacity of Deaf individuals the following should be an essential part of any such assessment. The experience in this case demonstrates the use of a non-specialist expert is not an appropriate substitute for the specialist assessment and risks incorrect conclusions regarding capacity being reached. Where an assessment is required the following considerations should guide any assessment of a deaf individual fluent in BSL:
(1) Any mental capacity assessment of a deaf individual fluent in BSL should ideally be undertaken by an assessor who is suitably qualified to communicate at the relevant level of BSL. If that is not done, there should be a clear explanation why and what measures, if any, are proposed to be in place to manage that gap.
(2) The assessor should ideally have a background in understanding deafness and engaging with the deaf community. If they don't, there should be a clear explanation why they are undertaking the assessment without such knowledge.
97. These essential steps should prevent the difficulties encountered in this case occurring again. They accord with the wider provisions regarding expert evidence in Part 15 Court of Protection Rules 2017 which make clear 'it is the duty of an expert to help the court on matters within his own expertise' (emphasis added) (PD15A paragraph 2). There is an obligation on those proposing an expert instruction, and on the expert themselves, to make sure that expert has the requisite expertise to prepare the expert report being sought.
Alongside this, the court was tasked with grappling with the issue of when and whether to make anticipatory decisions in the case of an individual, like KZ, who was determined to have decision-making capacity in a number of domains, but to lose it at times of “dysregulation”.
Noting the two competing routes to a finding of “longitudinal capacity” by Lieven J in A Local Authority v PG (by her litigation friend, the Official Solicitor) and an NHS Integrated Care Board [2023] EWCOP 9 – the longitudinal view taken by Sir Mark Hedley in Cheshire West v PWK [2019] EWCOP 57, versus the “anticipatory” approach adopted by Cobb J (as he then was) in Wakefield Borough Council v DN [2019] EWHC 2306 (Fam) – Theis J concluded:
- KZ regularly became dysregulated;
- He was cared for by a consistent team who would therefore be able to assess whether he had lost capacity in any relevant domain (at paragraph 87).
- The anticipatory declarations proposed by the local authority were workable according to the care plan they proposed;
The s.16(1) apparent exclusion – ie that it only enables the court to make orders “if a person lacks capacity” identified by Hayden J in GSTT v SLAM and R [2020] EWCOP 4 – was not applicable in circumstances where “this is not a case where there is a risk that KZ will lose capacity, it is a case where he does lose capacity, albeit it fluctuates” (paragraph 72).
In those circumstances, Theis J accepted the local authority submission that “the least interventionist approach to capacity that promotes KZ's autonomy and capacity would be achieved by making an anticipatory declaration as compared to the longitudinal one” (paragraph 72).
Comment
The trenchant observations in paragraph 97 about the approach capacity assessment of D/deaf people relate to proceedings before the Court of Protection; the observations in paragraph 96 apply across the board.
In relation to the other feature of the case, the Lieven J approach to “longitudinal” assessment has become increasingly popular in cases where local authorities are confronted with high-functioning yet difficult to manage service users. Many practitioners will have found this worrying, given the “off-switch” that it effectively applies to the capacity of individuals who fall prey to heightened emotions and the infamous “dysregulated” behaviour. Theis J’s observations regarding the “least interventionist approach” that anticipatory declarations provide carry a great deal of attraction – albeit that this kind of approach relies heavily on a highly skilled, consistent care team which, sadly, many individuals do not currently have the good fortune to be cared for by.
It is also not entirely clear whether the anticipatory ‘declarations’ she made were made on the basis of s.16(1) or s.15, but we suggest that the proposition put to her by the local authority and accepted blurred two conceptually distinct situations:
(1) Where a person, in fact, lacks capacity when their decision-making is assessed across the material time (the PG situation). At that point, s.16(1) is in play because the person lacks capacity for purposes of the exercise of the Court’s jurisdiction.
(2) Where a person has capacity, but loses it under particular circumstances. At that point, if the person has capacity at the point that they are before the court, s.16(1) simply cannot apply, and the court is reliant upon s.15(1)(c) to make anticipatory declarations as to lawfulness and /or the inherent jurisdiction of the High Court insofar as it is being asked to make any declarations relating to deprivation of liberty.
