I have been invited to write an article for publication in the Autumn edition of the Expert Witness Journal, ahead of the Bond Solon annual international Expert Witness Conference in London on 9 November 2018, entitled, ‘The Advocate and the Expert in the Court of Protection’. The following is an extract from the first draft which was submitted to the publisher 13.02.2018, and the final draft which will take into account all cases decided in the Court of Protection up to July 2018, is scheduled for submission on 30 August.
For more information about Mental Capacity Law and Practice please visit the Court of Protection and Judicial Review Proceedings page at www.carlislam.co.uk
In contrast to the adversarial method, which aims to get at the truth by two competing parties arguing their case and the judge deciding whose case is the strongest, the COP operates an ‘inquisitorial’ method, the aim of which is to get at the truth through extensive investigation and examination of all of the evidence. The opinions of professionals will be admitted as ‘expert’ evidence but considered alongside factual evidence from those who know the individual and will only be persuasive if the experts have been given all relevant information and applied the appropriate legal test. The starting point for assessing someone’s capacity to make a particular decision is always the assumption that the individual does have capacity.
What you are asking the judge to decide
‘[All] Courts make decisions on the evidence that is presented [and] to that extent, the Court is the servant of the evidence that is provided by the parties … [Whilst] the Court has an overall directing role in identifying the type and nature of evidence that it requires to make decisions, [because] ultimately those decisions must be faithful to the evidence that is capable of being accepted … It would … be illogical for the Court to arrive at a different position from that which is jointly argued for on the basis of evidence which is jointly accepted as valid.’ (Her Honour Judge Parry in MB v Surrey County Council  EWCOP B27 (16 October 2017). While it is difficult for a court to take a different approach to that of the parties, the court’s jurisdiction is ultimately an inquisitorial one, and ultimately capacity is a question of fact for the court to decide itself, on the balance of probabilities, taking into account the asymmetry introduced by the presumption of capacity. An adult is presumed to have the mental capacity to make a particular decision, until the contrary is proved, Mental Capacity Act 2005 (‘MCA 2005’), Section 1(2) (the ‘Statutory Presumption’). The burden of proof rests on those asserting that the individual does not have the capacity to take the particular decision in question. In deciding whether or not someone has capacity to enter into a particular transaction or make a particular decision, the standard of proof is the civil standard, the balance of probabilities, MCA 2005, Section 2(4). In other words having decided what the facts are, and having applied the law to those facts, the judge must decide whether on balance the individual is more likely to have capacity, or more likely to lack capacity to do something.
As observed by District Judge Glentworth in SL, Re  EWCOP 5 (31 March 2017):
‘In CC v. KK and STCC  EWHC 2136 (COP) Mr Justice Baker set out what is required of the court when assessing capacity at paragraph 24 as follows, “… when assessing the ability of P to (a) understand the information relevant to the decision (b) retain that information, and (c) use or weigh that information as part of the process of making the decision, the court must consider all the evidence, not merely the views of the independent expert. In many cases, perhaps most cases, the opinion of the expert will be confirmed by the other evidence, but inevitably there will be cases where the court reaches a different conclusion.’
… Bailey v. Warren  EWCA Civ 51 also makes it clear that the judge is best placed to consider how the nature of the particular proceedings impacts on the issue of capacity as well as the type of decisions which are likely to arise as part of the proceedings. Reference is made to the Civil Procedure Rules 1998 (CPR) and specifically to rule 21 which has now been amended to take account of the provisions of the MCA. Rule 21.2 CPR provides that a protected party must have a litigation friend to conduct proceedings on her behalf. A protected party is defined at rule 21.1 as, ‘a party or an intended party who lacks capacity to conduct the proceedings’. Rule 21.1(c) provides that the phrase ‘lacks capacity’ means lacks capacity within the MCA.’
Where having regained capacity to make decisions about his care P, refuses care resulting in loss of capacity to make decisions about care, the court has the power to make ‘contingent’ declarations and decisions in order to put in place a safety net regime.
Best interests decision-making
The defining characteristic of proceedings in the Court of Protection (‘COP’) is ‘best interests’ decision making, which requires that P’s interests are paramount. The legal framework was recently stated by Mr Justice Hayden in Abertawe Bro Morgannwg University Local Health Board v RY & Anor (Rev 1)  EWCOP 2 (08 February 2017) as follows:
‘The starting point for consideration of “best interests” is s4 Mental Capacity Act 2005. In this case a number of the s4 provisions require to be highlighted:
(6) He must consider, so far as is reasonably ascertainable—
(a) the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity)
(b) the beliefs and values that would be likely to influence his decision if he had capacity, and
(c) the other factors that he would be likely to consider if he were able to do so.
(7) He must take into account, if it is practicable and appropriate to consult them, the views of—
(a) anyone named by the person as someone to be consulted on the matter in question or on matters of that kind
(b) anyone engaged in caring for the person or interested in his welfare,
(c) any donee of a lasting power of attorney granted by the person, and
(d) any deputy appointed for the person by the court,
The Code of Practice to the Mental Capacity Act also require careful consideration…
I note that in Wye Valley NHS Trust v B  ECOP 60 Peter Jackson J was also able to identify what he termed P’s “intrinsic nature” and “core qualities” which weighed heavily in the balance when evaluating ‘best interests’.
In London Borough of Brent v NB  EWCOP 34 (25 October 2017), Her Honour Judge Hilder summarised the law as follows:
‘Fundamental to the Court’s consideration of DY’s [the case manager] proposal is the principle set out at section 1(5) of the Mental Capacity Act 2005: an act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done or made, in his best interests.
Section 4 of the Act provides that
(1) In determining for the purposes of this Act what is in a person’s best interests, the person making the determination must not make it merely on the basis of –
(a) The person’s age of appearance, or
(b) A condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.
(2) The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.
(3) He must consider –
(a) whether it is likely that the person will at some time have capacity in relation to the matter in question, and
(b) if it appears likely that he will, when that is likely to be.
(4) He must, so far as is reasonably practicable, permit and encourage the person to participate, or improved his ability to participate, as fully as possible in any act done for him and any decision affecting him.
(5) Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.
(6) He must consider, as far as is reasonably ascertainable –
(a) the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),
(b) the beliefs and values that would be likely to influence hid decision if he had capacity, and
(c) the other factors that he would be likely to consider if he were able to do so.
(7) He must take into account, if it is practicable and appropriate to consult them, the views of –
(a) anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,
(b) Anyone engaged in caring for tha person or interested in his welfare,
(c ) Any done of a lasting power of attorney granted by the person, and
(d ) Any deputy appointed for the person by the court,
as to what would be in the person’s best interests and, in particular, as to the matters mentioned in subsection (6).
In seeking to apply the provisions of section 1 and section 4 of the Act, I derive some assistance from the judgment of Munby J (as he then was) in the matter of ITW v. Z, M & Ors  EWHC 2525 at paragraphs 32 – 36:
“ i)….the statute lays down no hierarchy as between the various factors which have to be borne in mind, beyond the overarching principle that what is determinative is the judicial evaluation of what is in P’s “best interests”.
ii)…the weight to be attached to the various factors will, inevitably, differ depending upon the individual circumstances of the particular case. A feature of factor which in one case may carry great, possibly even preponderant, weight may in another, superficially similar, case carry much less, or even very little, weight.
iii)….there may, in the particular case, be one or more features of factors which….are of “magnetic importance” in influencing or even determining the outcome….
 i).. P’s wishes and feelings will always be a significant factor to which the court must pay close regard:
- ii) …the weight to be attached to P’s wishes and feelings will always be case-specific and fact-specific… One cannot, as it were, attribute any particular a piori weight or importance to P’s wishes and feelings: it all depends, it must depend, upon the individual circumstances of the particular case. And even if one is dealing with a particular individual, the weight to be attached to their wishes and feelings must depend upon the particular context; in relation to one topic P’s wishes and feelings may carry great weight whilst at the same time carrying much less weight in relation to another topic.
iii)…in considering the weight and importance to be attached to P’s wishes and feelings the court must of course, and as required by section 4(2) of the 2005 Act, have regard to all the relevant circumstances. In this context the relevant circumstances will include, though I emphasis that they are by no means limited to, such matters as:
- a) The degree of P’s incapacity, for the nearer to the borderline the more weight must in principle be attached to P’s wishes and feelings…
- b) The strength and consistency of the views being expressed by P;
- c) The possible impact on P of knowledge that her wishes and feelings are not being given effect to…
- d) The extent to which P’s wishes and feelings are, or are not, rational, sensible, responsible and pragmatically capable of sensible implementation in the particular circumstances; and
- e) Crucially, the extent to which P’s wishes and feelings, if given effect to, can properly be accommodated within the court’s overall assessment of what is in her best interests.
I also have regard to the decision of the Supreme Court in Aintree University Hospitals NHS Foundation Trust v. James  UKSC 67. Baroness Hale noted that the Act gives limited guidance about best interests. At  she said:
“The most that can be said, therefore, is that in considering the best interests of this particular patient at this particular time, decision-makers must look at his welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would be likely to be; and they must consult others who are looking after him or interested in his welfare, in particular for their view of what his attitude would be.”
As she went on [44 – 45], the purpose then of the best interests test is “to consider matters from the patient’s point of view.”
Where the protected person is able to express wishes and feelings about the decision in issue, the Court must decide what weight to give them. I have regard to the decision of Jackson J in X NHS Trust v. B (by his Litigation Friend, the Official Solicitor  EWCOP 60. He concluded that Mr. B lacked capacity to make a decision concerning surgery, and went on to consider the weight to be given to his expressed wishes, in particular at paragraph 10:
“…there is no theoretical limit to the weight or lack of weight that should be given to the person’s wishes and feelings, beliefs and values. In some cases, the conclusion will be that little weight or no weight can be given; in others, very significant weight will be due.
This is not an academic issue, but a necessary protection for the rights of people with disabilities. As the Act and the European Convention make clear, a conclusion that a person lacks decision-making capacity is not an ‘off-switch’ for his rights and freedoms. To state the obvious, the wishes and feelings, beliefs and values of people with a mental disability are as important to them as they are to anyone else, and may even be more important…. For people with disabilities, the removal of such freedom of action as they have to control their own lives may be experienced as an even greater affront than it would be to others who are more fortunate.”
I have considered also the decision of the Court of Appeal in K v. A Local Authority  EWCA Civ 79. The circumstances of that case included a concern that P was in an environment in which he could not articulate his own wishes, as opposed to what he believed to be the wishes of his father; and the proposal in issue was a move to supported living on a trial basis. The first instance judge had cited with approval the following passage from another case:
…it is very much the approach when dealing with incapacitated adults that the medical, educational and social authorities do their very best to nurture and facilitate any skills which the incapacitated adult may have to help them in moving, where possible, towards a greater degree of independence in the way they live their lives. Thus whilst in many cases the family may be the providers of care and nurture for such adults, there seems to me to be a philosophical and practical shift towards ensuring as great a degree of independence in living arrangements as is possible.”
In the Court of Appeal, Thorpe LJ said at paragraphs 30 and 35:
“In my judgment it is unnecessary to enter any investigation of social care policy or whether have been philosophical and practical shifts. …. The safe approach of the trial judge in Mental Capacity Act cases is to ascertain the best interests of the incapacitated adult on the application of the s 4 checklist. The judge should then ask whether the resulting conclusion amounts to a violation of art 8 rights and whether that violation is nevertheless necessary and proportionate.”’
In DM v Y City Council  EWCOP 13 (15 June 2017), commenting upon the weight to be attached to P’s wishes and feelings The Honourable Mr Justice Bodey remarked:
‘A major consideration under S4 of the Act is the individual’s past and present wishes and feelings and the beliefs, values and other factors which the individual would be likely to consider if he had the capacity to do so. Plainly the weight to be attached to those wishes and feelings is case specific and fact specific. Everything depends on the individual circumstances of the particular person concerned and the particular case. I have to bear in mind how near to the borderline of capacity [P] is; the nearer the line the more weight may be attached to his wishes and feelings. I must also pay regard to the strength and consistency of the views which he has expressed about being able to drink, together with the possible adverse impact on him (anger, disappointment, frustration etc) of knowing that his wishes and feelings have not been allowed to prevail.
The purpose of the ‘best interests test’ is to look at matters from the incapacitated person’s point of view (Aintree University Hospitals NHS Foundation Trust -v- James  UKSC 76). As Munby J, as he then was, said in Local Authority X -v- MM & Another  EWHC 2003 at paragraph 120: “Physical health and safety can sometimes be bought at too high a price in happiness and emotional welfare. The emphasis must be on sensible risk appraisal, not striving to avoid all risk whatever the price, but instead seeking a proper balance and being willing to tolerate manageable or acceptable risks as the price appropriately to be paid in order to achieve some other good – in particular to achieve the vital good of the elderly or vulnerable person’s happiness. What good is making someone safer if it merely makes them miserable?”’