Court of Protection provides guidance on expert capacity reports

One of the main roles of the Court of Protection is to determine whether individuals lack mental capacity under the Mental Capacity Act 2005.

This was recently considered in a case concerning a 68-year-old lady who has dementia, and the case resulted in the Court of Protection providing clear guidelines for all future cases that involve experts who are instructed to assist the Court to determine capacity.

The local authority, in whose care the 68-year-lady lived, sought a declaration from the Court of Protection about her capacity to make decisions regarding matters including her place of residence, care and support, the management of her property and finances, and whether she had capacity to marry.

The lady in question had a diagnosis of frontal lobe dementia and suffered episodes of confusion, aggression and behavioural changes which the local authority considered affected her safety in the community. She resided in a local authority care home and had formed a relationship with another resident.

As is common in these cases, a medical expert had been instructed to assist the Court in determining the capacity issues, in this instance a Consultant Psychiatrist, who assessed the lady and prepared a report to assist the Court. However, during the final hearing it was clear that the expert’s assessment did not address capacity in relation to all of the decisions in question. This resulted in the matter being adjourned for further evidence to be obtained and the Court of Protection provided guidance on how an expert’s report on capacity should be prepared in order to assist the Court, as follows:

• An expert’s report on capacity was not a clinical assessment, but should seek to assist the court to determine certain identified issues. The expert should therefore pay close regard to (i) the terms of the 2005 Act and the Code of Practice; and (ii) the letter of instruction.
• The letter of instruction should identify the decisions under consideration, the relevant information for each decision, the need to consider the diagnostic and functional elements of capacity, and the causal relationship between any impairment and the inability to decide;
• It was important that the parties and the court could see from the reports that the expert had understood and applied the presumption of capacity and the other fundamental principles set out in the Mental Capacity Act;
• In cases where the expert assessed capacity in relation to more than one decision, broad-brush conclusions were unlikely to be as helpful as specific conclusions regarding the capacity to make each decision;
• An expert’s report should explain the basis of each opinion;
• If an expert changed their opinion on capacity, they should provide a full explanation;
• If the expert relied on a particular exchange or something said by the person being assessed during interview, then an account of what was said should be included.
• If, on assessment, the individual did not engage with the expert, the report should record what attempts had been made to assist them to engage and what alternative strategies had been used. If an expert hit a "brick wall", they might want to liaise with others to formulate alternative strategies to engage the person who is being assessed. Failure to take steps to engagement and to provide support in decision-making would be contrary to the fundamental principles of the Mental Capacity Act.