Court of Protection makes anticipatory declarations and issues guidance for assessing the capacity of deaf individuals

Sophie Allan represented the Official Solicitor in the recent case of Oldham MBC v KZ and others (Fluctuating Capacity: Anticipatory Declaration) [2024] EWCOP 72 (T3) before the Vice President of the Court of Protection.

KZ is a 20 year old man who has been deaf from birth. His current care and support arrangements  are agreed to constitute a deprivation of his liberty which require court authorisation if KZ lacks capacity. The original psychiatric evidence on capacity was that KZ lacked capacity in all areas. However, a subsequent assessment by a psychologist with expertise in assessing deaf people found that:

1. KZ suffers from extreme language deprivation rather than borderline learning disability (as had previously been thought)
2. While he lacks capacity in relation to sex, finances, tenancy, social media and internet, and litigation, he has capacity in relation to residence, care and support and contact with his family. However, his capacity to make those decisions regularly fluctuates in that he loses capacity when upset or angry.

The updated evidence as to KZ’s capacity was accepted by all parties and the court.

It was submitted that the wording of  s 16 (1) MCA 2005 that, ‘This section applies if a person (‘P’) lacks capacity…’ can apply in circumstances (such as KZ’s) where the evidence demonstrates capacity is lost on a regular basis. As such, the case was distinguishable from the circumstances in GSTT v SLAM [2020] EWCOP 4  where Hayden J determined that the Act was not applicable in circumstances where P may lose capacity at a future date.

In her judgment the Vice President confirmed that the Court of Protection has the power to make anticipatory declarations in appropriate circumstances and that it was the right approach in KZ’s case.

In addition, the court provided guidance  concerning the assessment of mental capacity of deaf individuals, specifically:

‘(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.’