Expert Reports on Capacity
4 December 2020
Before a Deputyship application is made to the Court of Protection, we must first obtain a capacity assessment on the person to whom the application relates ('P'). This is a report prepared by an expert that addresses whether or not P has the requisite capacity to manage his or her own property and financial affairs. It is only upon an expert assessing P as lacking such capacity that a Deputy can be appointed.
Whilst each expert will have their own individual style and approach to the preparation of such reports, it is important that the Mental Capacity Act 2005 ('MCA') is in the forefront of his or her mind when making a conclusion.
A recent Court of Protection case (AMDC v AG and another [2020] EWCOP) has given further guidance on how expert capacity assessments can better assist the Court.
The key, it appears, is that capacity reports should show clearly the experts' understanding and application of the fundamental principles set out in section 1 of the MCA. This includes the presumption of capacity and should also demonstrate the experts' attempts in assisting P to participate and engage in the decision-making process. If P doesn’t engage initially, the expert should demonstrate his/her attempts of alternative strategies used to assist P in participating.
Conclusions should be specific to the question at hand. As such, broad or sweeping observations are unlikely to be considered helpful to the Court. The expert should be clear and articulate in explaining his or her basis for the opinion that they have formed. For example, if an expert is relying on something P has said or done during the assessment, a full account of this exchange should be included in the report.
The best way to ensure that an expert report contains everything that the Court requires is by providing clear and full instructions. The letter of instruction should plainly set out the decision being considered and information that is relevant to that decision. The instructions should set out which elements of capacity need to be considered and should make clear that the principles of the MCA are fundamental the assessment.
