D/deaf individuals and mental capacity assessments

The vice president of the Court of Protection has provided guidance concerning the assessment of mental capacity of D/deaf individuals fluent in British Sign Language (BSL), after finding that a young man was wrongly assessed as lacking capacity in all areas. He also suffered from episodes of fluctuating capacity.

This is the second blog in our series discussing fluctuating capacity. In our first blog, we considered the importance of incorporating flexibility in care plans, when an individual’s capacity fluctuates.

In the Oldham Metropolitan Borough Council v KZ & Ors case, the Court of Protection was asked to assess the capacity of a deaf man, KZ, who was fluent in BSL, to make decisions about his care and residence.

These proceedings concerned KZ, who was a 20-year-old man living in a specialist placement. KZ had a cochlear implant; however, he chose not to use it as he preferred to use BSL. KZ had a long history of needs, and in 2021, was assessed by a consultant psychiatrist who found KZ to lack capacity in all areas.

Following a move to a new placement with specialist help, a subsequent assessment was conducted by a psychologist with expertise in deafness, who found that while P lacked capacity in some areas (like finances and social media), he did have capacity in others (like residence and care), though this capacity fluctuated with his emotional state.

The local authority sought an anticipatory declaration from the court, so that a new care plan could be put in place to reflect the updated capacity assessment.

The decision

Mrs Justice Theis DBE noted that the court does have power to grant anticipatory declarations in appropriate circumstances and that it was the right approach in KZ’s case.

Notably, she also provided guidance for capacity assessments and emphasised the need for assessors to be proficient in BSL and ideally have a background in understanding deafness. If these conditions are not met, clear explanations and measures to manage any gaps should be provided.

Fluctuating capacity

Capacity is decision specific, and fluctuating capacity means an individual may have capacity at one time, but not another. In this case, KZ’s decisions about residence, care, and contact with his family was found to fluctuate. KZ’s decision-making ability was influenced by his emotional state when he was angry or upset; he tended to lose capacity as could not make an informed decision.

As KZ’s capacity fluctuated, unlike having a consistent lack of capacity, there were periods of time when he could make decisions. This posed a challenge for capacity assessors, and this case highlighted the importance of having assessors who are not only proficient in BSL but understood the nuances of fluctuating capacity.

Our content explained