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Expert evidence and the relevant information to rebut the presumption of capacity

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February 2, 2021 | By Alison Kaye |

February 2, 2021 | By Alison Kaye |

Below is a case summary of a hearing that I was involved in recently at the Court of Protection. As this case demonstrates, Mental Capacity is a very complex and emotive area of the law, where we’re often asked to help vulnerable clients and protect their best interests.

A three day hearing before Mr Justice Poole on 26th – 28th October 2020 was adjourned part-heard because of insufficient evidence from the jointly instructed expert who did not carefully consider the relevant information as required by the Mental Capacity Act 2005 to rebut the presumption of capacity.

Switalskis Solicitors are instructed to represent the protected party in these proceedings, known as AG. Mr Joseph O’Brien was instructed as Counsel for the hearing.

On 6th November 2020 the Final Report from the Working Group on Medical Experts in Family Courts was published. It identifies insightful suggestions for dealing with, and avoiding, some of the problems highlighted in this matter. The report can be found here.

An interim judgement by Mr Justice Poole was published on 18th November 2020 and can be found here.

A final judgement on capacity was published on 22nd January November 2020 and can be found here

Background:

AG is a 68 year old vulnerable lady with a diagnosis of frontal lobe dementia. She has lived in a care home since July 2019 but was initially living independently in her own home.

Concerns over AG’s capacity and welfare began when she was living alone in her own flat. She was frequently calling emergency service for assistance with trivial matters and neighbours reports seeing AG wandering the streets, knocking on their doors whilst partially dressed. AG was also noted to have episodes of confusions, aggression and behaviours changes which led to the involvement of social service to safeguard AG in the community.

AG was moved to the care home initially on an emergency respite basis but soon became her permanent residence. AG herself contested that she needed to be placed in the care home.

During her stay at the care home, AG developed a relationship with a male resident CI. Safeguarding concerns were raised by the care home manager, and soon after the social worker, over AG’s capacity to consent to sexual relations. She was found not have capacity to make this decision.

Jointly instructed independent expert – written evidence:

At the beginning of these proceedings the parties agreed that there should be a jointly instructed expert to explore AG’s capacity in relation to making decisions around sexual relations but also to other areas of decision making. These included:

  • Residence
  • Care and treatment
  • Conducting these proceedings
  • Contact with others
  • Marriage and divorce
  • Management of property and affairs

Dr Quinn, Consultant Forensic Psychiatrist, was instructed by the parties to report on the above matters as he specialises in dementia cases and has previously given written and oral evidence to the court.

During the course of these proceedings Dr Quinn filed 4 different reports giving different opinions and conclusions in each report. On 11th February 2020 Dr Quinn saw AG in person and reported on 24th February 2020. Dr Quinn saw AG again on 22nd May 2020 and reported on 1st June 2020. Following further questions from the parties and considering a witness statement by the social worker Dr Quinn filed a further report on 17th August 2020. Dr Quinn saw AG for a final time on 29th September and filed his final report on 21st October 2020.

On the reports dated 24th February, 17th August and 21st October 2020 Dr Quinn stated and concluded that AG lacked capacity in all of the areas of decision making which the court was being asked to consider. However, in the report dated 1st June 2020 Dr Quinn concluded that AG did have capacity in all the relevant areas. Therefore, the parties considered it necessary for Dr Quinn to give oral evidence before the court to ascertain his views.

Jointly instructed independent expert – oral evidence:

Dr Quinn gave oral evidence by answering questions posed by the parties for the first two days of the three day hearing. During his evidence those representing AG and CI raised concerns over Dr Quinn’s written evidence and whether he had properly considered the relevant information in relation to each specific and separate decision that was being considered.

Dr Quinn stated throughout his oral evidence that he had some “disquiet” in relation to his written reports and that he had hit a “brick wall” when interviewing AG. Dr Quinn explained that due to the nature of frontal lobe dementia AG was deteriorating and he could not explore further with AG the relevant information in fear that AG would shut down the interview completely.

Dr Quinn asserted that whilst it may have been a fluctuating picture and that AG may have had capacity in his report on 1st June 2020, his final report was still correct and his final opinion was that AG’s mental health had deteriorated and she no longer had capacity due to the nature of her diagnosis of frontal lobe dementia.

Following the completion of Dr Quinn’s evidence the relevant local authority confirmed that the court could not make determinations in relation to capacity with the evidence currently present before the court. This was mainly due to Dr Quinn’s lack of consideration of the relevant information.

Interim Judgement:

Mr Justice Poole gave an interim judgement (please see the link above) stating the reasoning which the court had to adjourn the hearing part-heard.

In the judgement Mr Justice Poole states that the court is grateful for Dr Quinn as he was meeting AG in person during the covid-19 pandemic. Mr Justice Poole emphasises that experienced independent experts are a rarity in the Court of Protection and sets out a number of factors mentioned in the Working Group on Medical Experts in the Family Courts at paragraph 26.

Following the hearing and the approval of Mr Justice Poole a further jointly instructed independent expert is to be instructed by the parties, taking careful consideration of the Letter of Instruction that will be given to them and to Mr Justice Poole’s interim judgement, specifically in relation to considering the relevant information in each separate area of decision making with AG. This expert was Dr Mynors-Wallis, Consultant Psychiatrist.

Further expert written evidence:

Dr Mynors-Wallis interviewed the care home manager and AG on 31st December 2020 and his reported is dated 4th January 2020. All the parties accept his opinions in full which include that:

  • AG lacks capacity in relation to conduct litigation, residence, care and support, property and affairs, and marriage and divorce.
  • AG has capacity in relation to sexual relations and contact with others.

The court is not bound to accept the opinion evidence of Dr Mynors-Wallis, even though it is adopted by all the parties, but it is accepted as the report referred to the fundamental principles of the MCA 2005 which Dr Quinn’s reports lacked in relation to the relevant information for each specific decision. This was specifically provided by quotes from the interview between Dr Mynors-Wallis and AG in relation to each decision.

A significant aspect of this evidence is that AG has been found to lack capacity in relation to marriage and divorce but has capacity in relation to sexual relations. Poole J makes reference to Mundell v (Name 1) [2019] EWCOP 50 as to the relevant authorities on capacity to enter into a marriage contract and its financial implications. AG did seem to understand that there may be a financial claim following divorce and more understood marriage to be changing her residence and care.

Following the decision of the Court the parties must now consider AG’s best interests and more significantly the applicant local authority must propose appropriate care plans in relation to AG’s right to engage in sexual relations with CI in the care home.

Conclusion:

This matter and judgement is important as professionals, whether they be social workers, s.49 professionals or independent experts, are relied upon by the parties and more importantly by the Court to make determinations in relation to the protected parties capacity.

When doing so, the parties and the court must take into consideration the principles of the Mental Capacity Act 2005 which is that the protected party must be presumed to have capacity until evidence arises to rebut that presumption. The evidence to rebut must take into consideration the relevant information following it being considered with the protected party in so far as it promotes their capacity.

It is hoped that the interim and final judgement on capacity will provide further clarity to professionals who conduct reports in relation to capacity specifically what the parties and the court is expecting to find in order to make its final determinations.

In addition, this matter further clarifies that a protected party may have capacity in relation to sexual relations but may lack capacity in relation to marriage and divorce as they are two distinctly separate decision where the relevant professional must consider different relevant information.

If you need legal advice on any aspects of Mental Capacity or Mental Health Law, contact us through the website, or call us on 0800 138 0458 and we’ll be happy to help.

Alison Kaye

Alison is an experienced specialist in Court of Protection matters. As a director of Switalskis, she oversees our combined Court of Protection & Mental Health department. Alison's profile