Court of Protection judge sets out guidance on mental capacity assessments for deaf individuals

A senior Court of Protection judge has outlined a number of considerations that should guide any assessment of a deaf individual fluent in British Sign Language (BSL), after finding that a young man was inaccurately assessed as lacking capacity in all areas.

In Oldham Metropolitan Borough Council v KZ & Ors (Rev1) [2024], Mrs Justice Theis, Vice President of the Court of Protection, said these considerations were:

(1) 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 gap.

(2) 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.

The case concerned KZ, a profoundly deaf young man.

Mrs Justice Theis noted that since February 2024, KZ has lived in a specialist placement, TX, that meets his needs as a profoundly deaf person.

She added that there had been a long history of his needs not being properly met when he lived with his family until the age of 16 years, and then during his time in the care of the local authority until his move to TX.

In October 2021, a consultant developmental psychiatrist undertook a capacity assessment and concluded that KZ lacked capacity to conduct proceedings and make decisions in relation to his residence, care, engaging in sexual relations, receiving the Covid-19 vaccine and his medication.

In an addendum report in early 2022, the psychiatrist concluded KZ also lacked capacity in relation to contact, his use of the internet and social media and his financial affairs.

She identified that KZ had a diagnosis of a borderline learning disability, whilst he presented with some autistic features.

The Vice President noted: “Fortunately, as a result of KZ being supported by his current placement (TX) from November 2023 prior to moving there, questions were raised about the previous capacity assessment.”

For instance, questions were raised regarding the psychiatrist’s conclusions on the basis that it appeared she was assisted during her assessment by the service manager of KZ’s previous placement, who acted as a BSL interpreter for the purposes of her assessment.

The TX assessors understood the service manager held BSL level 1 training. They considered any mental capacity assessment should be supported by a Registered Sign Language Interpreter being present with a service manager and/or someone such as his Independent Deaf Advocate and Deaf Relay in support.

Without that the assessors did not consider there could be reliance upon “surface level” interpretations of the language KZ presented/displayed at that time and KZ's communication had not been optimised, especially as many concepts (such as court) were new to him, the judge noted.

A consultant psychologist with expertise in assessing deaf people was instructed in early 2024.

She undertook her assessment over the course of three appointments with KZ when he was properly supported and reached a different conclusion regarding KZ's capacity - in particular, her opinion that KZ has capacity to make decisions about residence, care and support and contact with his family, save for occasions when he becomes dysregulated when he may lack capacity and in those circumstances decisions would need to be made in his best interests.

The judge said: “[The consultant psychologist’s] well evidenced and reasoned conclusions are accepted by both the local authority and the Official Solicitor, as litigation friend for KZ.”

The judge added that KZ's parents did not take issue with much of what the consultant psychologist had stated, but wished to have contact with KZ.

At the time of the hearing, they had not seen him since November 2023, which accorded with KZ's wishes.

The judge said: “KZ's parents have been involved in recent meetings with the local authority to discuss the way forward. The current plan is for the parents to prepare a video which will be made available to KZ, it may provide a way forward for further contact, if that is what KZ wishes.”

In October 2024, the local authority filed a detailed care plan setting out the arrangements for KZ's care continuing at TX.

Counsel for the local authority submitted that KZ has capacity to make decisions regarding his residence, care and support and contact with his family, except when presenting in a state of heightened arousal and anxiety.

The judge noted: “The local authority remain clear that KZ's care plan should provide for 2:1 support in the light of the recent incidents that have been recorded by TX. KZ seeks for a reduction in that support but the TX have made it clear that at the current time they would not support the continued placement with them if there was a reduction in support.

“It is recognised that when KZ has capacity he is able to refuse the provisions of 2:1 support, however KZ's deaf advocate has confirmed KZ recognises that 2:1 support is part of the rules that underpin the placement. KZ's deaf advocate has confirmed KZ wishes to remain living at the TX and accepts that abiding by the rules is necessary in order to do so.”

Considering the submissions, Mrs Justice Theis concluded: “There is no evidential issue regarding the conclusions reached regarding KZ's capacity or the legal framework that should govern the aspects of KZ's capacity that fluctuate, namely residence, care and support and contact with his family.

“The carefully calibrated care plan put forward by the local authority fully meets KZ's best interests and accords with his wishes. I recognise it is not fully supported by KZ's family but when balanced with the overwhelming evidence of how KZ's placement at the TX is meeting KZ's needs I am satisfied that care plan is the right plan for KZ and accords with what his best interests require and demand.”

Additionally, she noted: “On the information [the consultant psychologist] had she makes a number of trenchant comments about the support that has historically been provided to KZ. She is critical of assessments by non-specialists over the years that have been detrimental to KZ. They have been the foundation of the lack of understanding as to how KZ's needs should be met and have played a large part in KZ's language deprivation. [The consultant psychologist] considers KZ's placement at TE was detrimental to KZ and 'traumatic' and in relation to that placement [the consultant psychologist] states ‘it is frankly astonishing that the one professional with BSL thought it appropriate to act as an 'interpreter' in previous assessments, since he would have had enough awareness to realise he was not qualified to do so’”.

Mrs Justice Theis concluded: “The experience in this case demonstrates the use of a non-specialist expert is not an appropriate substitute for the specialist assessment and risks incorrect conclusions regarding capacity being reached.”

After setting out the key considerations for other cases of this kind, the Vice President added: “These essential steps should prevent the difficulties encountered in this case occurring again. They accord with the wider provisions regarding expert evidence in Part 15 Court of Protection Rules 2017 which make clear 'it is the duty of an expert to help the court on matters within his own expertise' (emphasis added) (PD15A paragraph 2).

“There is an obligation on those proposing an expert instruction, and on the expert themselves, to make sure that expert has the requisite expertise to prepare the expert report being sought.”

Lottie Winson