Capacity Assessments – Can They Be Challenged?

A protected party in Court of Protection proceedings will be required to have their capacity formally assessed either before proceedings have begun, or before the Court is asked to consider any application. Capacity is decision-specific. For example, it is common for a protected party to be assessed as lacking capacity to deal with their property and financial affairs, whilst retaining capacity in respect of decisions affecting their health or a decision on whom from their family and friends they may have contact with.

Capacity assessments determine whether the Court has jurisdiction, but as part of this process, a protected party’s wishes and feelings should be identified, so far as they are able to express them. Under both the Mental Capacity Act 2005 (MCA) and the Court of Protection Rules 2017, enabling a protected party to make their own decisions so far as possible and ensuring their participation are key objectives.

At times, it is possible that Court of Protection proceedings will be brought pre-emptively as a protected party’s capacity has not been fully assessed, if they are deemed to be in danger of abuse. This is commonly the case where a Local Authority has become involved with a family in accordance with the Care Act 2004 and is opposed to the actions being taken either by the protected party or by those caring for them.

Capacity assessments from social workers

The starting point is that a protected party is presumed to have capacity unless proven otherwise, but one test carried out summarily by a capacity expert will usually suffice, which can make a local authority’s job easier in the first instance. The Courts are more willing to accept capacity assessments from a social worker directly involved with a protected party and will not always require an independent expert to be instructed unless the issue becomes contested. This has become increasingly the case in light of COVID-19, as to minimise the practical implications of an independent expert carrying out an assessment.

Whilst many social workers are very adept at assessing capacity, the danger associated with this is that if that person has had prior involvement with the protected party and his/her family, their findings might partly be based on their own personal opinions, which at times can lead to an unreliable outcome. This of course can be to the protected party’s detriment and they might lose control of their own affairs.

Unwise choices and lack of capacity

A common mistake that is made is confusing unwise decisions with a lack of capacity. Section 1(4) of the MCA confirms that a protected party is not to be treated as lacking capacity merely because they make a decision that is unwise. The ability to retain and weigh up information relating to the decision is usually vital.

Section 1(3) of the MCA provides that all reasonable steps must be taken in order to help a protected party make a decision of their own accord. This is something that deputies frequently have to bear in mind when it is difficult to explain things to a protected party, or if it is hard for a protected party to communicate, and some deputies utilise quite creative attempts to involve a protected party.

However, there is generally an expectation that a capacity assessor will make all reasonable efforts to encourage a protected party to make their own decision. This is another common deficiency in reports completed at the start of urgent proceedings. Although the Court will at first instance make interim declarations when an urgent Court application is made, anybody who is involved in the proceedings either as a party, or notified as an interested party may take steps to challenge that decision and an independent psychiatrist will usually be appointed at that time. Although their opinion will be very influential, the Court ultimately has the final say.