The dangers of capacity assessment shopping

I’d like to talk about what happens when you’ve got a capacity assessment that doesn’t match up with the frontline professionals’ views. This has come up for me, most recently, in the context of the Deprivation of Liberty Safeguards but it can come up in other contexts too. I’d also like to reflect on what we mean when we talk about evidence-based decision making. It’s a term that gets used a lot, and after a while we can forget what it is actually about. So today, I’d like us to step back, and really think on this. I’ll do it through use of an example. If you’ve been reading this blog for a while, you know the drill: the case is completely anonymised but is based on a real life example.

Let’s talk about with V

V has a learning disability and resides in a care home. He’s been assessed as lacking capacity to make decisions about where he resides and what care he receives. There is a standard authorisation in place. But V is objecting to being there. He wants to go home and live with his brother.

There are very understandable reasons why the local authority don’t want V to go live with his brother. Given the history of safeguarding alerts and the brother’s ‘chaotic’ lifestyle, the best interests decision is sound, and the the Best Interests Assessor agreed that it is in his best interests to remain there.

But since V is objecting, his Relevant Person’s Representative brings a s21A challenge, quite rightly. For more about why s21A proceedings are important in these circumstances, see my previous post here.

Those proceedings are moving along as expected, the local authority is preparing a statement as to the options considered and what care would be needed for him to be able to return home. So far, a pretty standard case as far as my work is concerned.

Here’s where it gets interesting. During the proceedings, the standard authorisation gets to its 12 month expiry date (the court had extended it from the initial 6 month date). Now there is a small school of thought out there, populated by people far more familiar with arguing points of statutory interpretation than I, that consider that the court can extend a standard authorisation beyond 12 months. But as far as I can tell, those people are in the minority. The view I advise my clients and team to take is that once the 12 months is reached, a new authorisation is needed.

New assessments for DoLS purposes are commissioned. The BIA agrees it is in his best interests to remain there at the moment and recommends a 6 month authorisation whilst options are explored. The s12 doctor is commissioned to do the capacity assessment (my authority’s choice, it can also be done by the BIA). The doctor does a remote capacity assessment and concludes that V actually does have capacity. So no standard authorisation.

This isn’t the first time this has happened, and it won’t be the last. I actually take it as a good sign when professionals reach different conclusions sometimes, because it shows that some real consideration is being given, not just agreeing with the professionals who have ‘gone before’.

But we’re still in proceedings. Except s21A proceedings are predicated on there being a standard authorisation. And there is none.

What stood out for me, about this case, was the question that followed from more than one professional who definitely should have known better. It was a two-fold question:

1) Why can’t you just grant a standard authorisation anyway?

2) and why can’t you grant an urgent authorisation in the interim?

This was a well meaning question, I believe, aimed at preserving V’s eligibility for legal aid. But there were a number of alarm bells that started ringing in my brain.

Let’s begin with the second part of the question. I have an ‘in principle’ objection to this, because urgent authorisations are meant for urgent situations. And I really struggle to see how a placement that had been in place for at least 12 months can be considered ‘urgent’. The (largely forgotten about) DoLS Code of Practice does make it clear these are intended to be used for unforeseen situations, but doesn’t quite state that an urgent authorisation cannot be used in this situation. And this is certainly unanticipated, but it appears to me that this is beyond what was intended when the DoLS scheme was implemented.

But Schedule A1 paragraph 77(2) does say that an urgent authorisation can’t be used if there has already been an urgent authorisation for the same placement. And there had been in this case.

But even if there hadn’t have been, 14 days (assuming the local authority agreed the extension) is not a long enough time for any issues to be resolved in this case. So no, this wasn’t an appropriate way forward.

And why can’t we ‘just put a standard authorisation in’? Well, because we have an assessment that we can’t ignore that says he has capacity. That assessment is not flawed to the point that it can legitimately be discounted as unreliable. It just doesn’t align with the social worker’s view. And isn’t the whole point of these safeguards to act as a check and balance? To provide an independent view? And, indeed, if the local authority can just pick and choose which assessments it accepts until it gets one that gives the outcome the local authority wants, does that not undermine the whole point of the safeguards. Does detention not, by definition, become arbitrary?

As far as I am concerned, if you can’t see how blooming dangerous that type of attitude is, you are in the wrong job. I didn’t say this to any of the professionals who raised this, of course, but it did feature in our team meeting that always features a “you’ll never guess what X said” segment as a kind of shared therapy experience.

The solicitor instructed by the RPR summed it up quite nicely when she said “you could do that, and I’ll be able to continue my legal aid certificate. But I’ll probably have to use it to bring a human rights claim against the local authority”. Because, yeah, the system is there for a reason.

The code of practice was surprisingly unhelpful on this subject, but it does say the local authority is not required to commission assessments in response to repeated requests at paragraph 9.5. So it’s a power to refuse a request that’s basically “we didn’t like the last answer, try again”, but not a duty to do so, as far as I could see. Take from that what you will.

So a lot is put on the professionalism of DoLS teams, which is a little bit scary. Luckily our DoLS manager is a diligent professional who confidently said “I’m not going to do that”.

But even if you take the fundamentals out of this. Even if you are not a ‘big picture’ person, there is still a fairly obvious problem here, in terms of evidence-based decision-making. Because whether we like it or not, that assessment is evidence that has to be taken into account. That doesn’t mean we have to accept all of its conclusions, but there has to be a reason, supported by evidence, upon which to base at least a reasonable belief of incapacity. Public bodies cannot, and should not, make decisions to discount evidence entirely when it doesn’t like the outcome. Being evidence based is about looking at all of the information available, thinking about the sources of that information and which pieces do and don’t fit together. It means finding discrepancies and thinking about why those inconsistencies might have occurred. In a case like this, it means looking at whether the doctor was appropriately qualified, whether they had all of the information and whether they have clearly and logically set out how they have reached their conclusions through application of the Mental Capacity Act 2005. And since this doctor had done what was required, my view was that granting a standard authorisation was likely to be unlawful, and would set a dangerous precedent.

Wouldn’t you agree?

And before I create an issue here, I am not saying that it won’t be appropriate, in some cases, for someone of appropriate decision-making authority to decide that an assessment is so flawed that it should be set aside. I would hope that the circumstances where this is appropriate are few and far between, but sometimes an assessment is just very weak. What I am saying is that the person making that decision needs ťo have a robust and clear reason for making that decision. And, you guessed it, they should record their decision and the reasons for it in a way that can be relied upon in the event of a future challenge.

And in circumstances like V’s, all is not lost. After all, the court has the power to make declarations as to capacity, and can be called upon to make a decision where there is a genuine dispute as to capacity. What it means for V, assuming that the court is satisfied that on the totality of the evidence before it, there is still a reasonable belief that V lacks capacity, the proceedings will have to switch to a different guise. After all, a decision under s21A requires a standard authorisation to be in place. So the proceedings will need to be reconstituted under s16 whilst the court gathers evidence, which might include an independent expert’s report. Interim declarations can be made under s48, and the proceedings will resume. V’s legal aid will now be means tested. But other than that, the proceedings will largely pick up where they left off, just that now the court will be called upon to make decisions about capacity as well as best interests.

In case it isn’t obvious from the fact I still haven’t identified the authority I work for, the views expressed on this blog are my own opinion and not the opinion of that local authority

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