The key principle of the Mental Capacity Act 2005 (MCA 2005) is the presumption of capacity, which is one’s ability to make a decision. In certain circumstances, although someone may be deemed to lack capacity in specific domains, the parties involved may seek to obtain further capacity evidence. This evidence can be obtained by way of a section 49 report (MCA 2005) or, alternatively, by instructing an independent expert, who would have particular expertise to deal with P’s presentation or diagnosis. For example, if P was alcohol dependent then the parties would look to instruct an expert who specialised in dealing with such cases.
Section 49 of the MCA 2005 allows the court to order a public body (e.g., NHS trust) to nominate an individual to provide a report at no cost. The details of what is being asked, and in this case, what capacity evidence is being sought, will be provided to the individual conducting the assessment in a Letter of Guidance.
If the parties are seeking to instruct an independent expert, they are to provide a letter of instruction which should identify what decisions are being considered, what information is considered relevant to the decisions, the two stage test (s2(1) and s3(1) MCA 2005), and the causative nexus. The instructions provided and the report produced must abide the fundamental principles of the MCA 2005 and the practice direction 15A in the Court of Protection Rules (COPR).
Practice Direction 15A – Expert Evidence
1. Part 15 is intended to limit the use of expert evidence to that which is necessary to assist the court to resolve the issues in the proceedings. After an application form is issued, no person may file expert evidence unless the court or a practice direction permits.
The entirety of Practice Direction 15A – Expert Evidence can be found here.
The case of AMDC v AG [2020] EWCOP 58 provides guidance for cases involving independent experts who has been instructed in assessing the protected party’s capacity. The Court provided guidance on how expert reports in respect of capacity are to be prepared so that is able to better assist the Court. The court determined that whilst an expert report is not a clinical assessment, it can assist the court in determining the identified issues in the matter of capacity.
When a report is provided, either by a public body or an expert, it is imperative that the basis of their opinion is thoroughly explained. If the protected party did not engage with the individual completing the assessment, all attempts made to engage them must be recorded in the report, alongside any alternative methods used to encourage engagement. If no steps are taken in respect of engaging the protected party to engage with the expert / public body, this would go against the fundamental principles of the MCA 2005. In essence, when parties are seeking capacity evidence, the fundamental principles of the MCA 2005 must always be followed.