Withholding Information For The Purpose Of A Capacity Assessment

A key component in all Court of Protection proceedings is the finding in respect of the Protected Person’s capacity. Only once it has been confirmed that a person lacks capacity will the Court of Protection have jurisdiction. Once jurisdiction has been confirmed, they are then able to make decisions on behalf of the Protected Person in accordance with their best interests.

It is common for applications before the Court of Protection to include a capacity report however this is not always a given, particularly in disputed applications, for which one party may interfere or obstruct a capacity assessment taking place. An application to the Court of Protection may therefore be necessary for an assessment to take place in the first instance.

Once a capacity assessment is agreed to take place, the parties will be required to provide the assessor with all of the relevant information in relation to the nature of the capacity assessment. This will allow the capacity assessor to ask queries relating to the specific decision in question in order to determine whether or not the Protected Person retains capacity. The instruction of an expert is usually uncontroversial however at times, it may be necessary for instructions to be provided on a protected basis, meaning that none of the parties will have access to the information provided.

Withholding the instructions from others must only occur when it is necessary for the protection of the Protected Person. Such instances may arise where a capacity assessment relates to a person’s property and financial affairs and disclosing the sums involved may create a safeguarding issue for the Protected Person. The recent case of P (by his litigation friend, the Official Solicitor) v Manchester City Council and others considered withholding information for the capacity assessment in which it was ordered the information would remain withheld from the Protected Person’s parents until after the assessment had been carried out and the report served on them.

P (by his litigation friend, the Official Solicitor) v Manchester City Council and others

Case background

This was a complex case before the Court of Protection in which the parents of the Protected Party were in dispute with the Official Solicitor who had been appointed in relation to the Protected Party’s personal injury proceedings. The parents were keen to pursue the personal injury proceedings themselves and objected to the involvement of the Official Solicitor, despite the complexity of the personal injury claim.

The Protected Party and his parents also sought to disclose minimal information regarding his circumstances or allow for a capacity assessment to take place, which obstructed the personal injury proceedings. The Official Solicitor was therefore required to apply for a capacity assessment to be ordered and sought the information required for the assessment be withheld on the basis this information may cause safeguarding concerns for the Protected Party. This was contested by the Protected Party’s parents on the basis they wished to be treated equally within the proceedings.

The Court of Protection noted the need for open justice and commented on the requirements of Article 6, being the need for a fair public hearing. On the other hand, after reviewing the information to be withheld the Court of Protection noted disclosure would place the Protected Party at risk of significant harm, in breach of his Article 8 right to a private family life. It was further noted that the information may be used to prevent a fully informed capacity assessment. It was therefore held that the non-disclosure was necessary at this stage to protect the Protected Party’s rights under Article 8, however in order to allow full transparency the information would be disclosed after the capacity assessment had been served.

Comment

This case confirms information can be withheld within the Court of Protection providing it is necessary for the protection of the Protected Party. Further, in order to allow fair proceedings any request for information to be withheld should be on a temporary basis unless it is absolutely necessary for information to be withheld on a permanent basis.