Mr B – Ashley Bradley considers one s21A challenge and the delays in determining the mental capacity requirement

Background and chronology of proceedings

Mr B is in his late 50’s and has been diagnosed with Schizoaffective disorder. Except for a small period of time that he spent in another care home in 2015, since 2012 he has been residing at his current care home, where he has his own self-contained flat. From the paperwork available to his representatives, it seems that he spent a period of time at the care home under Guardianship, was subject to a standard authorisation for a 4 month period in 2018 and then subject to a further standard authorisation in 2019.

Mr B is independent with his personal care, takes his own medication under supervision, prepares his own basic meals, maintains his flat and does his own laundry. Staff are on hand if he needs assistance and prior to Covid-19, he was able to freely come and go from the care home, regularly accessing the local community as long as staff were informed prior to his departure.

Mr B objects to being at the care home, often describing it as “a prison” and feeling like he is being punished. As a result of his objections, his RPR instructed MJC Law and following an initial visit to Mr B, proceedings were issued in the Court of Protection under S21A of the Mental Capacity Act 2005 in November 2019. Initial orders were made listing the case for a hearing before Mr Justice Cobb on 27 January 2020.

In advance of and at the hearing on 27 January 2020 concerns were raised on behalf of Mr B that the evidence before the court in relation to his capacity was not sufficient to rebut the presumption of capacity on a final basis. It was hoped that Mr B’s treating psychiatrist would be able to complete a further assessment of Mr B’s capacity and a capacity report was therefore directed by the court under s49 of the Mental Capacity Act 2005.

The capacity report was provided at the beginning of April 2020 and was not completed by Mr B’s treating psychiatrist as had been hoped. The assessor confirmed that Mr B has a diagnosis of schizoaffective disorder and found that he lacked capacity to make decisions about where he lives and the care he requires. Mr B’s representatives raised a number of issues with that capacity report and the updating capacity assessment completed as part of the deprivation of liberty safeguards. In advance of the hearing on 23 April 2020, the court made an order granting the parties permission to put further questions to the s49 assessor and, in light of updating evidence to be filed by the local authority, to ask whether the assessor felt a further visit to Mr B should be undertaken.

There was some delay in the addendum report being provided as the local authority needed time to file updating evidence to clarify and correct some of the information that had been filed in the original s49 report. Unfortunately Mr B’s social worker became ill so there was a short delay of about a week in the local authority’s evidence being provided. This pushed back the date for the addendum capacity report, again by about a week. The assessor declined to visit Mr B again despite the updating information provided by the local authority. They provided an addendum report in July 2020 which confirmed that they remained of the view that Mr B lacks capacity in the areas of decision making assessed. Again, Mr B’s representatives were not satisfied with the addendum report and in August 2020 enquiries were made of independent experts who could assess Mr B and provide a report for the court.

The court made an order, in advance of the hearing on 7 September 2020, granting permission for the parties to instruct an independent consultant psychiatrist to assess Mr B’s capacity to conduct the court proceedings and make decisions about where he lives and the care he receives. It was hoped that the capacity report would be available at the end of October 2020 but a second face to face visit to Mr B was required by the independent consultant psychiatrist which meant that the report was not received until the end of November 2020. The independent consultant psychiatrist concluded:

• During the assessment, Mr B’s diagnosis of schizoaffective disorder did not impact upon his ability to understand, retain and use and weigh the relevant information when making decisions about the court proceedings, where he should live and his care needs; and
• Mr B has the capacity to conduct the proceedings and make decisions about where he lives and the care he receives.

The report of the independent consultant psychiatrist was accepted on behalf of Mr B but not on behalf of the local authority. A COP9 application was submitted to court by the local authority in December 2020 seeking a hearing and further directions in light of their concerns about the independent consultant psychiatrist’s report. Unfortunately the court did not have any availability to list an earlier hearing so the issue was dealt with at the hearing on 15 February 2021.

Hearing on 15 February 2021

It was argued on behalf of Mr B at the hearing on 15 February 2021 that the court should terminate his standard authorisation on the basis that he has capacity and cannot be lawfully deprived of his liberty at the care home. It was stressed that Mr B had been assessed as having capacity some 3 to 4 months ago and that the court needed to deal with the issue expeditiously. The court was referred to the cases of DP v London Borough of Hillingdon [2020] EWCOP 45 in respect of the need for a speedy determination of the issues and London Borough of Tower Hamlets v PB [2020] EWCOP 34 in relation to the importance of the presumption of capacity. The court was informed that Mr B was aware of the conclusion that he has capacity and that any further delay may have a negative effect upon him given he does not want to be at the care home.

The local authority maintained its objection to the independent consultant psychiatrist’s evidence and the court was not prepared to deal with the issue without giving the local authority an opportunity to challenge the independent consultant psychiatrist’s evidence. The earliest opportunity that the court could list this matter for a contested hearing was 27 April 2021 so directions were made for written questions to be put to the independent consultant psychiatrist in advance of that hearing. Given the amount of time that had passed in Mr B’s case, the court also granted permission for an independent social worker to be instructed so that Mr B’s best interests could be considered imminently in the event that the court concluded that Mr B lacks capacity.

Conclusion of proceedings

The independent consultant psychiatrist provided written responses to the questions asked by the local authority on 22 March 2021. The independent social work report was received on 16 April 2021 and whilst the report did not expressly touch upon Mr B’s capacity, the independent social worker did comment on Mr B’s ability to consider the relevant information as part of the discussions and rationalise his decision making.

In light of the updating evidence filed by both the independent consultant psychiatrist and the independent social worker, the local authority reconsidered its position and withdrew its objections to the independent consultant psychiatrist’s evidence. The court therefore determined that Mr B does not meet the mental capacity requirement under Schedule A1 of the Mental Capacity Act 2005 and as a result, it terminated the standard authorisation on 26 April 2021.


This case has raised concerns due to the length of time that it has been before the court without a conclusion being reached. That is understandable and it has certainly been the aim of Mr B’s representatives throughout this case to deal with matters as expeditiously as possible.

The delays in this case were caused by an accumulation of different factors and it highlights the difficulties that those subject to Court of Protection proceedings can face. The court system is under enormous pressure, with back to back listings meaning it is difficult to get an earlier hearing when needed. This has only been compounded by the pandemic. Local authorities are also facing huge pressures and scarce resources, with social workers being off sick and having to deal with hefty caseloads. Delays in evidence are not uncommon. The system is not perfect but the pursuit of ensuring that P has his application dealt with swiftly by the court must not come at the expense of a full and proper consideration of the issues.

Perhaps a wider point for consideration is how the process of obtaining a capacity report under s49 of the Mental Capacity Act 2005 can be improved, especially when the need for speedy resolution is paramount. NHS trusts are under increasing pressure due to the sheer volume of s49 requests they receive on top of their everyday clinical work and the quality of reports that the court receives varies. In this case, the s49 assessor reached a conclusion that Mr B lacked capacity following one 30 minute visit that was terminated early by Mr B. They declined a second visit despite requests from Mr B’s representatives and in all, spent longer speaking with staff than actually assessing Mr B. In contrast, the independent consultant psychiatrist spent approximately 2 ½ hours with Mr B over 2 separate visits which helped Mr B’s engagement with the assessment.

Whilst the context of the pandemic has to be noted, the parties and the court spent over 6 months in total dealing with the capacity assessment completed under s49 of the Mental Capacity Act 2005. Had the case proceeded straight to an independent instruction, the total duration of the case may have been much reduced, and the overall costs involved. Far from saving time and expense, the use of s49 reports in preference to an independent expert escalated both.

Despite the issues, Mr B’s representatives were keen to ensure that Mr B was at the forefront of decision making in this case. He was able to meet Mr Justice Cobb, initially at court and then during remote attendances over Skype. He has been kept fully up to date throughout these proceedings and whilst often frustrated by the length of time that it has taken to reach a conclusion, he was keen for his case to be dealt with by Mr Justice Cobb as opposed to another member of the judiciary who may have been able to hear the case earlier.

This case serves as a reminder that case management can be an unpredictable and delicate balancing exercise, having regard to ensuring a speedy determination; a thorough examination of the issues which, when the issues are complex, necessarily takes longer; considering P’s wishes and supporting their participation; and costs.

If you would like to speak to someone about a Court of Protection welfare case to see if we can help, please contact one of the members of our Court of Protection team on 0113 4830188 or email