Oldham Metropolitan Borough Council v KZ (Fluctuating Capacity: Anticipatory Declaration): [2024]
Stephensons’ Court of Protection team represented a vulnerable adult in this case which considered some important points. Mrs Justice Theis, the Vice President of the Court of Protection, handed down a judgment on 4th of December 2024, issuing some very welcome guidance for assessing the mental capacity of vulnerable adults who suffer from hearing impairments, to ensure that P’s communication needs are considered, their capacity is promoted, and to avoid incorrect conclusions being reached.
The judgment also considered the appropriateness of making anticipatory declarations under s16(2) Mental Capacity Act 2005 to authorise a deprivation of an individual’s liberty in cases of fluctuating capacity (during the periods of time that they lose capacity).
Background of the case:
The proceedings related to KZ, a 20 year old male, who is profoundly deaf, and had been initially diagnosed with a borderline learning difficulty, ADHD. The case concerned his capacity to make decisions in a number of areas, including in relation to his residence, care and support, his contact with others, to manage his finances, engage in sexual relations and his use of the internet and social media.
There had been a long history of his needs not being met when residing with his family, leading to KZ being moved to a supported living placement, which was not a deaf-specialist placement. An inherent jurisdiction application was initially made by the local authority, Oldham MBC, to the Family Division of the High Court in January 2022 to authorise the deprivation of KZ’s liberty at this placement.
Within the inherent jurisdiction proceedings, on 19th of October 2021, Dr Rippon produced a capacity report that concluded that KZ lacked capacity to make decisions in respect of his residence, care, engaging in sexual relations and to receive the Covid-19 vaccination due to a learning disability. The local authority subsequently made an application to the Court of Protection in light of KZ being assessed as lacking capacity. Within the Court of Protection proceedings, in May 2022, Dr Rippon was instructed to produce an addendum report, which concluded that her opinion in respect of QK’s capacity remained unchanged.
Throughout the proceedings, we raised concern about the suitability of KZ’s placement and in particular, the fact that his communication needs were not being met. In February 2023, this resulted in the court expressing that the local authority was “manifestly failing” [para 35] in its duties towards KZ and directed a written statement from the head of service at the local authority.
KZ started to receive some support from TX, from staff fluent in British Sign Language (“BSL”) which ultimately led to him moving to TX, a specialist deaf placement, on 7 February 2024.
Capacity issues
The Court of Protection proceedings nearly concluded in January 2024 on the basis of Dr Rippon’s expert evidence that he lacked mental capacity in all relevant areas. However, concern was expressed by KZ’s new placement, TX, regarding the capacity assessments produced by Dr Rippon. In particular, it was noted that Dr Rippon was assisted by the service manager of his old placement, who acted as a BSL interpreter for the assessment, despite only holding a level 1 BSL training qualification. As a result, they did not consider there could be a reliance upon “surface level” interpretations of the language KZ presented during the assessment, and that KZ’s communication had not been optimised [para 48].
This led to the joint instruction of a second independent expert, Dr O’Rourke, a BSL speaking Consultant Psychologist with expertise in assessing deaf individuals.
Dr O’Rourke’s assessment was completed over the course of three separate sessions, and she reached a different conclusion to Dr Rippon. She concluded that Dr Rippon’s initial diagnosis of learning disability was heavily unsupported, commenting that KZ is in fact “very far from” such a diagnosis . She concluded that KZ in fact has capacity to make decisions about his residence, care and support, and contact with his family, save for at times when he becomes “dysregulated” – and during these times, he is likely to lose capacity and decisions would then be required to be made in his best interests.
Dr O’Rourke was critical about the assessments of KZ undertaking by non-deaf specialists over the years which had led to incorrect conclusions and played a large part in his “language deprivation”. She concluded that KZ was a case of “extreme language deprivation” and that “his previous label of a “borderline learning disability is inaccurate and has arisen due to use of assessments which are not valid for deaf people” [para 51].
Dr O’Rourke met KZ on three occasions, and her first report detailed the adjustments that are needed. She stated that:
“Intellectual capacity should be distinguished from attainment of skills and knowledge and the test results should be interpreted as an indication of potential, rather than actual attainment and functioning. The deaf child growing up in a hearing world has limited access to information, both in terms of formal education and incidental learning. This means that a deaf adult may have significant gaps in knowledge and understanding, which is the effect of deprivation of information rather than lack of ability. This is often most striking in social and emotional functioning. In [KZ’s] case, the effects of language deprivation on his understanding of the world around him, and how he relates to that world appear to have been extreme and therefore his attainment of knowledge and skills have been far below his potential’. [82]
This is interesting as ‘Language Deprivation Syndrome’ is not a recognised disorder, but is recognised within the literature relating to deaf people. The court accepted that the diagnostic element under s2 of the Mental Capacity Act 2005 (‘The Act’) was met as a result of this, despite this not amounting to a ‘cognitive impairment’ as such. Dr O’Rourke reached the same conclusion in respect of diagnosis in the case of TW v Middlesbrough Council [2023] EWCOP 30 at [30].
The Act requires that ‘all practicable steps’ must be taken to enable P to make a decision. Furthermore, section 3(2) states that P must not be deemed unable to understand the information relevant to the decision ‘if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances’.
In this case, Theis J gave important guidance to follow when conducting a mental capacity assessments of deaf individuals at paragraph 96:
Where an assessment is required the following considerations should guide any assessment of a deaf individual fluent in BSL:
- Any mental capacity assessment of a deaf individual fluent in BSL should ideally be undertaken by an assessor who is suitably qualified to communicate at the relevant level of BSL. If that is not done there should be a clear explanation why and what measures, if any, are proposed to be in place to manage that.
- The assessor should ideally have a background in understanding deafness and engaging with the deaf community. If they don’t, there should be a clear explanation why they are undertaking the assessment without such knowledge.
Anticipatory declarations / fluctuating capacity
When KZ becomes agitated and dysregulated, he is likely to lose the ability to use and weigh information and “his capacity therefore fluctuates, and decisions made in the heat of the moment when upset are unlikely to be capactious’ [para 55]. One example being, if he asks to leave the placement TZ when he is agitated he may not have capacity to make that decision in the moment, but ‘if he later calms down and can discuss the pros and cons of remaining or staying but maintains that he wishes to leave, this is likely to be capacitous’. [55]
The local authority filed a care plan with the court which detailed the arrangements for KZ’s care at TX. The restrictions within the care plan amounted to a deprivation of KZ’s liberty and the court had to consider whether an anticipatory declaration (i.e. a declaration in advance that something is lawful during the times when he loses capacity) can be made under s16 of the Act, due to a requirement that a deprivation of liberty can only be authorised by the court if it is made pursuant to s16(2)(a), as per s4A(4) of the Act.
It was submitted that anticipatory declarations were workable in this case, given that the support staff at TX were confident that it could easily identify when KZ becomes dysregulated. The ‘longitudinal approach’ taken in other cases (Cheshire West v PWK [2019] EWCOP 57) was not considered appropriate in this case given that for the majority of the time, KZ has capacity. To make decisions in his best interests and deprive him of his liberty all of the time, would therefore not promote his capacity and be in accordance with the principles in s1 of the Act.
Theis J accepted this, stating that “the making of an anticipatory declaration would provide a proper legal framework for the care team, ensuring that any temporary periods of deprivation of liberty are duly authorised and thereby protecting them from civil liability”.. She contrasts this with Lieven J’s approach in A Local Authority v PG [2023] EWCOP 9, in which it was very difficult for the carers to identify when PG was dysregulated and lacking capacity.
Emily Ireland, Graduate Paralegal, Court of Protection Team