Court of protection rules on care and capacity of deaf individual

Background

The Court of Protection recently ruled on a complex case involving KZ, a 20-year-old profoundly deaf individual. The case centred on KZ's capacity to make decisions regarding his residence, care, and contact with family members. KZ had been living in a specialist placement, TX, since February 2024, which was designed to meet his specific needs.

Proceedings

The proceedings began in January 2022 and were almost concluded in early 2024 based on expert evidence that initially found KZ lacked capacity in all relevant areas. However, a new assessment by Dr O'Rourke, a Consultant Psychologist with expertise in deaf individuals, reached a different conclusion. Her assessment, conducted with proper support, indicated that KZ had the capacity to make decisions about his residence, care, and family contact, except during periods of dysregulation.

Assessment and Findings

Dr O'Rourke's assessment highlighted that KZ's previous diagnosis of a borderline learning disability was inaccurate. Instead, she attributed his difficulties to extreme language deprivation. Her findings were accepted by both the local authority and the Official Solicitor, acting as KZ's litigation friend.

Parental Involvement

KZ's parents, who had not seen him since November 2023, expressed a desire for contact, which was not reciprocated by KZ. The court facilitated discussions and proposed that the parents create a video for KZ, which could potentially lead to future contact if KZ wished.

Legal Framework

The case involved the application of the Mental Capacity Act 2005, which requires that a person must be assumed to have capacity unless proven otherwise. The court considered whether anticipatory declarations could be made under the Act, given KZ's fluctuating capacity.

Decision

The court decided to make anticipatory declarations regarding KZ's capacity to make decisions about his residence, care, and family contact. This approach was deemed appropriate given the evidence that KZ's capacity fluctuated but could be clearly identified by his carers.

Best Interests

The court found that KZ's placement at TX was in his best interests, as it provided an environment where he could thrive and develop his communication skills. The court recognised the significant progress KZ had made since moving to TX, which had a positive impact on his behaviour and understanding.

Implications

This case underscores the importance of using specialist assessments for deaf individuals to ensure accurate evaluations of capacity. It also highlights the need for care plans that are attuned to the specific needs of individuals with fluctuating capacity.

Learn More

For more information on mental capacity and related legal frameworks, see BeCivil's guide to UK Employment Law.