In the recent case of PH v Local Authority (2011) (which is unreported at the time of writing), the Court of Protection ruled that a sufferer of Huntingdon’s Disease (HD) lacked capacity to make a decision as to his residence and care. In reaching this decision, the court preferred evidence given by those who had day-to-day care of P, rather than the evidence given by an expert consultant neuro-psychiatrist with a particular expertise in HD.

After P had been admitted to a residential home, the local authority carried out the assessments required under Schedule A1 of the Mental Capacity Act 2005 and gave a standard authorisation for P’s ongoing detention. P challenged the conclusion that he met the capacity and best interests’ requirements necessary for a standard authorisation and applied to the court, under section 21A of the Act, for an order terminating the authorisation.

Evidence as to whether or not P had the capacity to make decisions concerning his residence and care was given by a number of parties, including an expert consultant neuro-physician who was an expert in HD, and who gave evidence that P did have capacity concerning residence. However, the court found that the neuro-psychiatrist’s report was somewhat superficial – as it was based solely on a single 90-minute interview with P - and that this was detrimental to his evidence.

Evidence was also given by three clinicians who had treated P, as well as P’s social worker, who all agreed that he lacked capacity. Two of these witnesses had known P before he was admitted, and gave evidence that his lack of capacity pre-dated his admission. The clinician witnesses had valuable expertise in HD which, coupled with their much greater experience of P as a patient, justified the court attaching greater weight to their combined views. Furthermore, P’s social worker’s opinion demanded very great respect. All four of these witnesses contributed to the evidence that P lacked the capacity to make decisions regarding his future residence. Baker J stated that “in assessing the question of capacity, the court must consider all the relevant evidence. Clearly, the opinion of an independently instructed expert will be very likely to be of very considerable importance, but in many cases the evidence of other clinicians and professionals who have experience of treating and working with P will be just as important and in some cases more important.”

The court subsequently held that P lacked a true awareness of his need for personal care, and did not meet three of the four components of the functional test set out in section 3(1) of the Act. The court therefore made a declaration under section 15 of the Act that P lacked capacity in relation to the question of whether he should be accommodated in the residential home for the purposes of being given care and treatment. It also declared that he lacked capacity to make a decision as to his residence and care, and this declaration would remain in force for six months to enable all practicable steps to be taken to assist P in acquiring capacity.

This case underlines the importance of detailed, properly recorded capacity assessments whenever capacity is an issue. It demonstrates that the evidence of clinicians with day-to-day care of a patient will carry significant weight if the issue of capacity comes before the courts.