Tag: Mental Capacity Act

CT v London Borough of Lambeth & North Central London ICB ([2025] EWCOP 6)

hawamayetLeave a comment

In the recent case of CT v London Borough of Lambeth & North Central London ICB ([2025] EWCOP 6), the Court of Protection addressed issues concerning mental capacity assessments, particularly the role of ‘insight’ into one’s mental health conditions.

Background

CT, a man in his 50s, sustained a head injury at age 12, leading to epilepsy and cognitive impairments. Despite being medically fit for discharge from the hospital, he faced potential homelessness due to a lack of suitable placements. On September 5 2024, a Judge concluded that CT lacked the capacity to make decisions regarding his residence and care, resulting in his continued detention in the hospital under a Deprivation of Liberty authorisation. This decision was challenged, leading to the appeal.

Legal Issues

The appeal focused on whether the initial capacity assessment inappropriately conflated CT’s mental impairments with his decision-making abilities. Specifically, it questioned the inclusion of CT’s lack of ‘insight’ into his psychiatric diagnoses as a factor in determining his capacity. The Court examined whether the Statutory criteria under the Mental Capacity Act 2005 were correctly applied, emphasizing that ‘insight’ is a clinical concept separate from the legal assessment of capacity.

Judgment

Mrs. Justice Theis allowed the appeal, finding that the lower Court had set an excessively high standard by requiring CT to have insight into his mental impairments as part of the capacity assessment. The Judgement highlighted that capacity assessments must adhere strictly to the Statutory framework of the Mental Capacity Act, avoiding the conflation of clinical insight with legal capacity.

Implications

This case reinforces the necessity for precise application of the Mental Capacity Act in capacity assessments, ensuring that individuals are not unjustly deprived of their decision-making rights based on their mental impairments. It highlights the importance of distinguishing between clinical insight and legal capacity.

The Judgement also provides a checklist to assist in conducting proper capacity assessments, emphasizing adherence to Statutory criteria without additional considerations of clinical insight.

This ruling serves as a reminder of the legal principles governing capacity assessments and the need for meticulous application to uphold the rights of those with mental impairments.

You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com.

Protecting The Vulnerable Whilst Promoting Autonomy – The Secretary of State for Justice v A Local Authority & Ors [2021] EWCA Civ 1527

Stephanie KayeLeave a comment

Background

The case was brought forward to the Court of Appeal from the Court of Protection after Mr Justice Hayden sitting in the Court of Protection made the decision that care workers would not commit a criminal offence under section 39 of the Sexual Offences Act 2003, were they to arrange for a man aged 27 (hereafter known as “C”) to visit a sex worker in circumstances where he had capacity to consent to sexual relations and to also decide to have contact with a sex worker; with the arrangements not being made by himself. 

Preliminaries

C had been diagnosed with Klinefelter Syndrome (XXY syndrome). This resulted in developmental delays and social communication difficulties. As such, C required a large amount of assistance with independent living. C spoke with his Care Act advocate about having sexual activity with a sex worker, who then liaised with C’s social worker. In turn, the social worker raised this matter with the Local Authority and proceedings commenced addressing the lawfulness of such contact. 

The key distinction was that the concern was not whether the care workers were acting within the best interests of C and acting to make C’s wishes come to fruition, but rather whether the care workers would “cause” C to engage in sexual activity. This would directly breach Section 39 of the Sexual Offences Act 2003 and the care workers would be committing an offence were this the case. However, in brief, the judge concluded the care workers would not be doing so.

Hayden J dealt with this question and made decision which is the subject of appeal by the Secretary of State for Justice who had been added as a respondent.

Conclusions on Section 39 of the 2003 Act

Hayden J accepted the submission that the care workers arranging for the Protected Party to visit a sex worker would not amount to “causing the Protected Party” to engage in sexual activity. His reasoning being that the central Philosophy of the 2003 Act as being to “protect those where the relationship itself elevates vulnerability” along with one of the aims of the 2003 Act being “to empower, liberate and promote the autonomy of those with mental disorders.”

Most notably, the activity was desired by the Protected Party who did have capacity to decide whether to have sex or not. Section 39 aims to protect those whose autonomy could be oppressed, but importantly, not to protect them from themselves – this would contradict the aim of promoting autonomy in those with mental disorders. There would be no abuse by the care worker who had facilitated C’s choice because the actions would have been calculated to voice C’s autonomy within the sphere of sexual relations.

The proceedings of this case were regarded as a steppingstone for a further envisaged care plan regarding C’s wishes. However, the position of the Clinical Commission Group remains to be that the risks to both C and the sex worker may be too great to warrant the potential care plan facilitating this.

Grounds of Appeal

The Secretary of State advanced three grounds of appeal. (1) The judge misinterpreted section 39 of the 2003 act. (2) To sanction the use of a sex worker is contrary to public policy and (3) the judge failed to conclude that articles 8 and 14 of the Convention required his favoured interpretation.

Final Judgements and Conclusions

It was declared that despite The Secretary of State advancing grounds of appeal, the proceedings would be appealed on the basis that arranging the services of a sex worker would place the care workers in considerable risk of committing an offence under section 39 of the 2003 Act.

Lady Justice King reasoned in line with this, drawing on the Mental Capacity Act 2005: “achieving autonomy for an incapacitated adult lies at the heart of the Mental Capacity Act 2005”. It is not the role of the Court of Protection to endorse an act that would be unlawful, yet under a reading of the statute without interpretation this would be the case.

Moreover, Lord Justice Baker agreed and recommended that an appeal be allowed, stating that the powers to decide whether a proposed course of action would be criminal does not exist within the scope of the Court of Protection. Lord Justice Baker went on to highlight the risk it would place the care worker sin if this course of action were followed, in line with Lord Chief Justice.

Remarks:

Overall, this case serves to highlight the scope of law for the Court of Protection as well as raise an interesting discussion into the limits of best interests decisions for Protected Parties. Furthermore, the case highlights the core aims of both the Sexual Offences Act 2003 and the Mental Capacity Act 2005, that being, to protect the vulnerable whilst at the same time allowing for empowerment and the promotion of autonomy.

The full detail of this judgement can be found here.

You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com.

Can the police gain access to the psychological report undertaken on the protected party?

Casey McGregorLeave a comment

In the case of AB (Court of Protection: Police Disclosure) [2019] EWCOP 66, an application was put forward by the police force in order to gain access to a psychological report, which was undertaken on the protected party, who is the subject of proceedings in the Court of Protection. The purpose of this report was to inform the police about the protected party’s capacity to access internet and social media. The Official Solicitor acted as the protected party’s litigation friend and opposed the application by the police force for disclosure of the reports.

The protected party was assessed by a psychologist on various occasions. Three reports were prepared dated 16 July 2018, 8 January 2019, and 23 May 2019. The first two reports related solely to the protected party’s capacity to conduct litigation and to make decisions about his residence. The third report addressed the issue of the protected party’s capacity to access the internet and social media. Within this report, the psychologist advised that the protected party did in fact have capacity to access the internet and social media.

The police force have been investigating alleged offences committed by the protected party in 2017 and 2018. The offences related to category C images of children.

It was noted that the third report did not deal with the question of whether the protected party had capacity on this issue in 2017 and 2018. As a result, the judge concluded that the third report contained nothing of relevance to the police investigation.

The judgement confirmed that the judge would only consider disclosing the report to the police force if the weight to be given to the public interest was so great as to outweigh the consideration of honesty by the protected party in the Court of Protection proceedings and therefore the application was refused.

Please contact Casey McGregor in our Court of Protection Costs team for more information at casey.mcgregor@clarionsolicitors.com

Should P continue to have contact with her abusive partner?

Casey McGregorLeave a comment

In a recent case, A County Council v LW & Anor [2020], an application was brought by a Local Authority in relation to the Protected Party’s capacity. The Protected Party was 60 years of age, and three years prior to the application, the Protected Party was admitted to a unit. The Protected Party was initially detained under the Mental Health Act 1983. When the Protected Party was admitted to the unit, she was described as being in a ‘truly parlous condition’ and it was clear that her personal hygiene was neglected.

In 1991, the Protected Party had been diagnosed as having Bipolar Affective Disorder. However, the main concern in relation to the Protected Party’s life seemed to be the long term relationship she had formed. The judge described the relationship as being abusive, exploitative, coercive and wholly inimical to the Protected Party’s welfare. It became clear that she was emaciated due to her partner restricting her food intake, limiting her to one potato and salad per day. The abusive partner had also forbidden the Protected Party from wearing underwear and engaging in activities she enjoyed, such as playing the piano, in order to meet his distorted perceptions on religion.

Whilst the Protected Party had been residing at the unit, her partner had still been living in her property, which had been neglected and was in a state of disrepair. The Protected Party’s partner has declined various requests from the Local Authority for them to meet with him or to assess the property.

The entire team who surrounded the Protected Party had a shared view that she would benefit considerably from a complete cessation of contact with her abusive partner. An application was made to decide where she should live and whether or not she should continue to have contact with her abusive partner.

If the Protected Party was allowed to return to her property with the partner, it was considered that the Court would be exposing her to a regime of controlling and abusive behaviour which was certainly not within her best interests. It was agreed by the Court that contact should be ceased between the Protected Party and her abusive partner and that the Local Authority and the Property and Affairs Deputy would progress the matter in order to evict the partner from the Protected Party’s property, in her best interests.

Please contact Casey for more information at casey.mcgregor@clarionsolicitors.com

5 reductions in COP assessments that you need to know about!

Casey McGregorLeave a comment

At Clarion, we deal with over 2,000 COP bills of costs per year and we monitor common reductions. Every case is completely different, but you do not need to simply accept the reductions made to your bill of costs and you can request a reassessment, if appropriate to do so. We recognise the hard work that COP practitioners put into their matters and are passionate about working with our clients to help them recover fair and reasonable costs. Based on our experience, we have identified 5 recent reductions which we think should be on your radar.

Document time reductions

It is common for time spent on documents to be reduced or struck out where the Costs Officer considers it to be excessive, but it may be necessary to challenge these reductions. If you can provide reasonable justification as to the time spent, the necessity of the task at hand and the grade of fee earner undertaking the task, then it can be beneficial to provide more information to the Costs Officer and request that the reduction is reconsidered. A good example of this is time relating to the OPG102 in exceptional cases, where the Protected Party’s liquid assets are high or their estate is particularly complex.

Contact with internal teams

It is not uncommon for the Deputy to require support from another area of expertise in a management period or application. Examples could include the Conveyancing Team in respect of property matters, or the Employment Team regarding the directly employed care staff. The contact with internal teams is commonly reduced as ‘inter-fee earner’, however it is often essential in progressing the matter. If an external team were to be instructed, the time would likely be much more costly, therefore the instruction of the internal team can often be in the Protected Party’s best interests. It can be beneficial to advise the Costs Officer of the situation and the necessity of the internal teams’ assistance, to allow them to reconsider reductions appropriately.

Lack of evidence

Whereby the Costs Officer strikes out time due to the ‘lack of evidence’ or ‘no file note’, this should be challenged by simply providing the relevant file notes. Evidence for all work done should be on file, but if something is missed, this can be provided retrospectively which allows the Costs Officer to reconsider the time they disallowed.

Excessive contact with the Protected Party/Family/Case Managers

A common reduction is excessive contact with the Protected Party, their family or the Case Manager.  A high level of contact may be necessary for a number of reasons. The Protected Party might call the fee earner very regularly, or there might be issues with directly employed care team which would be vital for the Case Manager to deal with, communicating with the Deputy to resolve them properly, or a family member may act as the main point of contact. If there are reasons behind the high levels of  contact, they should be set out to the Costs Officer to justify it and show that the time spent was proportionate to the matter. We regularly see blanket reductions to high levels of contact, which can often be resolved during reassessment in the right cases.

Travel Reductions

Reductions to travel time aren’t common, however they do still occur. Travel reductions should be challenged if they are not reasonable. The Protected Party can often live very far from the Deputy and if the meeting is reasonable, the mode of transport is appropriate and the time spent is justified, a reduction of this kind should not be accepted.

We are happy to advise any professional Deputy who is unhappy with the outcome of their assessment and continue to work with law firms nationally to help them recover fair and reasonable costs. Please contact Casey for more information at casey.mcgregor@clarionsolicitors.com

Latest statistics show 50% annual increase in orders made under the Mental Capacity Act [2005].

Stephanie KayeLeave a comment

The Family Court statistics bulletin relating to the final quarter of 2017 has been published, providing an overview and insight into the data relating to Court of Protection applications and orders for the year.

The latest report published by the Ministry of Justice show that the number of orders made under the Mental Capacity Act (MCA) continued to rise significantly in the last year, with a staggering 38,945 orders being made in 2017. This is an increase of almost 50% on the number of orders made in 2016. It is noted, however, that much of this increase can be attributed to the clearance of a number of preexisting and outstanding cases during the first quarter of 2017.

Around 40% of the orders made under the MCA in 2017 related to the appointment of a Deputy for property and financial affairs, continuing the consistent increase since 2009. Please see the below table for a complete breakdown of all orders made under the MCA in 2017.

 

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The upward trend relating to numbers of Deprivation of Liberty (DoLS) applications also continued in 2017. There were 3,995 DoLS applications made throughout the year, a 27% increase on 2016, showing the continued increase in awareness of DoLS and the increased impetus to have deprivations authorised. The numbers of DoLS orders made in 2017 also rose by 81%, which (when compared with the 27% increase in applications) evidences the delay between application and order.

There was a continued increase in the numbers of Lasting Powers of Attorney (LPAs) received in 2017; LPAs received rose by 28% between 2016 and 2017, with over 180,000 LPAs being registered in the final quarter of the year alone. This increase is a continuation of the upward trend seen since 2015, likely due to the ease of online forms and increased publicity and media coverage of Powers of Attorney. The long-term downward trend relating to the number of Enduring Powers of Attorney (EPAs) continued, with a 7% annual decrease in EPAs received in 2017.

The full report can be found here.

If you have any questions about the above, please feel free to contact Ethan Bradley at ethan.bradley@clarionsolicitors.com.