“(1) The following principles apply for the purposes of this Act. “(2) A person must be assumed to have capacity unless it is established that he lacks capacity. “(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success. “(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision. “(5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests. “(6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.”
“(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.”
“(1). For the purposes of section 2, a person is unable to make a 14. decision for himself if he is unable— “(a) to understand the information relevant to the decision, “(b). to retain that information, “(c) to use or weigh that information as part of the process of making the decision, or “(d) to communicate his decision (whether by talking, using sign language or any other means). “(2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means). “(3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.”
“(4). The information relevant to a decision includes information about the reasonably foreseeable consequences of— “(a) deciding one way or another, or “(b). failing to make the decision.”
“L is able to function at a relatively high level in spite of his disability. He is borderline regarding his lack of capacity, and I quote from the report of Dr. Halsted: “‘Given suitable conditions, he might be better able to express his own feelings and judgments authentically and more accurately. The issue affecting capacity, in my view, is not L’s innate mental ability, as assessed by psychometric testing, but rather the overwhelming emotional issues of others which he is poorly equipped to resist.’ “The court should pay great attention to possible steps that assist L in acquiring capacity or at least be put in a position to express genuine choices and preferences.”
“L is able to understand some basic information about where to live. However, I do not think he understands sufficient information to be able to make a decision about residence and neither is he able to use information or weigh up factors in making that decision.”
“L is able to understand some basic information relevant to deciding who he should have contact with. However, I do not think he understands sufficient information in order to make a decision and also is not able to weigh up different factors important in making the decision. Again, he is clearly able to express a preference about who he sees.”
“My exploration of this with L is described in paragraphs 21 to 26 of my original report. Relevant information about different possible places to live that was important to L was (a) what opportunities for activities were associated with particular places to live; (b) the physical aspects of the place, such as the size of the room, the size and physical state of the garden and the facilities for clothes storage.”
“Other aspects of the relevant information that I explored with him were (a) the financial aspects of any place to live, including rental and the cost of support associated with placement; (b) the location of any place to live with regards to his friends and relations; (c) the location of any place to live with regard to neighbourhood facilities; (d) who he would be living with.”
“Other relevant information would include (a) more information about the facilities available in a place to live, such as access to cooking and laundry facilities, (b) more information about housing rights, such as security of tenure; (c) more information about risks of particular options, such as likelihood of negative events, such as burglary and exploitation.”
“This included his support needs in relation to (a) going out of the house, (b) cooking, (c) cleaning, (d) laundry, (e) money management, (f) behaviour and who might be providing that care if he decided to be supported in that area.”
“Other relevant information would include personal care. In relation to these needs, the relevant information would include a moderate amount of detail of what support is required and a basic understanding of how it could be provided and funded and, broadly, what quality control measures could be put in place.”
“Relevant information we discussed included who he might see (his father, brother, aunt and his friend C) and what factors were important in making decisions about whether to see people, such as the positive aspects of their relationship, the risks of seeing people, the emotional factors, the importance of family ties, how other person might feel about his decision and the nature of friendship.” 24. Then at C581 he said as follows in relation to L’s ability to understand the relevant information and weigh it in the balance: “With regard to residence, I found that L understood some basic information in relation to the physical characteristics of his new placement. However, I found that his understanding of this information was at a basic level and he did not understand sufficient detail in order to be able to make a capacitous decision. For example, he did not consider the state of repair of the building. For other aspects of the relevant information, such as the financial aspects of the placement and the location in relation to his friends and relatives and local facilities, his understanding was much poorer. In relation to decisions about care, L demonstrated a basis understanding of his care needs, but this was not sufficiently detailed in order to make a capacitous decision. For example, he did not understand sufficiently about protection from exploitation, the importance of hygiene and safety in the home. He also had extremely limited understanding of the financial aspects of care provision and the need for staff training and background checks.”
“Turning to contact decisions, although L was able to say who he wanted to see and who he did not, he was not able to understand relevant information with regard to the positive aspects of his relationship with his father and brother, the risks of seeing people, the emotional factors, the importance of family ties, how the other person might feel about his decision and the nature of friendship. With regard to weighing in the balance, this is, of course, hampered by the fact that he did not understand all the relevant information and that he therefore put too much weight on the factors that he did understand. For example, with decisions about residence he put too much weight on the basic physical characteristics and did not consider location or financial aspects sufficiently and with decisions about contact he put too much weight on his own feelings without sufficient consideration, for example, of the importance of family ties and how the other person might feel.”
“I therefore remain of the view that L at the time of my assessment lacked the capacity to make decisions about residence, care and contact.”
“L’s drawings enabled the assessor to facilitate a more concrete conversation with L, regarding his wishes and feelings related to each option: L’s accommodation drawings on the 33. table before him; 34. L to the pre-prepared resources (as described at 7.2.3 above); taking time to ascertain his understanding of their meaning, e.g., the difference between living at / and visiting somewhere; wanting something / and not wanting something; and happy / okay / sad etc.; L was able to distinguish between living at / visiting somewhere, by explaining that when you live somewhere, you sleep there; however, when you visit somewhere, you go home to sleep; L was able link his understanding of the word ‘sleep’ to the visual representation of the drawing of a bed and bedstead; 35. L was able to distinguish between wanting something / and not 36. wanting something, by explaining that when you want something you like it; however, if you don’t like something, you don’t want it; L was able to link each emotion to its respective visual representation; he described his understanding of the differen 37. ‘some pressure’ / ‘not bad’, and sad means ‘pressure and worry’; L a number of open questions aimed at 38. ascertaining his wishes and feelings regarding future accommodation options (L expressed his understanding that JL was not a future option). The assessor’s approach to questioning was guided by L’s responses: 1. The assessor asked L if he wished to place ‘TO LIVE’ cards on any of the drawing(s) [he did]; 2. Next the assessor asked L if he wished to place ‘VISIT’ cards on any of the drawing(s), where he would like to visit, but not live [he did]; 3. Following on, the assessor asked L if he wished to place ‘bed and bedstead’ cards, (representing sleep), on any of the drawing(s) [he did]; 4. Next the assessor asked L on each of the drawings representing his future accommodation options [he did]; 5. Following on, the assessor asked L if he wished to place ‘I WANT’ cards on any of the drawing(s) [he did]; next, the assessor asked L if he wished to place ‘NOT WANT’ cards on any of the drawing(s) [he did]; 6. Then, the assessor asked L if he wished to place either / or both ‘WEEK’ and ‘WEEKEND’ cards on any of the drawing(s), re: where he would prefer to live / sleep during the week, and at weekends [he did]; 7. Lastly, the assessor asked L if he wished to place cards numbered 1-7 (representing the number of nights he would prefer to sleep), on any of the drawing(s) [he did]. This process was repeated to ascertain L’s wishes and preferences regarding future contact with K and M: L the pre-prepared cards that were two-thirds 46. blank, stating, ‘DAD’, ‘AUNTY’, ‘L (full first name used)’ and ‘STAFF’ (as described at 7.2.3 above); 47. L was asked if he wanted to draw pictures of K, M, himself, and a member of staff on the respective cards. However, L stated that he could not draw people. The assessor asked L if he would rather draw ‘stick’ men and women, as opposed to actual individuals; however, he replied, ‘no I can’t’. The assessor asked L if he wanted her to draw stick men and women on each card; to which he agreed; 48. L if he wished to embellish / personalise any of the ‘stick’ men and women drawn by the assessor. L was able to describe some characteristics of a particular staff member, and his aunt; which were subsequently added by the assessor (e.g., hair style, glasses, clothes etc.). However, L did not wish to do so for his father; 49. conversation with L, regarding his wishes and feelings related to contact; L was able to demonstrate his ability to distinguish between K, M, and the staff member; based on their respective drawings; L described his understanding of ‘contact’, by explaining that it means ‘to visit a person’, ‘to go / or see someone’; 50. L was able to differentiate between JL, ‘X’, K’s flat, M’s property; and the 51. ‘community’, which he understood to mean outside / or at a café etc: 1. Initially the assessor asked L if he wished to place the drawings of K and M, on the drawings of where they live [he did]; 2. Next, the assessor asked L if he wished to place the drawing of himself on any of the drawing(s), of where he would prefer to live [he did]; 3. Then the assessor asked L if he wished to place ‘VISIT’ cards on any of the drawing(s), of where and whom, he would like to visit, [he did]; next the assessor asked L if he wished to place ‘VISIT’ cards (crossed out (X), on any of the drawing(s), of where and whom he would not like to visit [he did]; 4. Next the assessor asked L K’s and M’s drawings re: contact [he did]; 5. Following on, the assessor asked L if he wished to place ‘I WANT’ cards on any of the drawing(s), of where and whom he would like to have contact [he did]; next, the assessor asked L if he wished to place ‘NOT WANT’ cards on any of the drawing(s), of where and whom he would not want to have contact [he did]; 6. Then, the assessor asked L if he wished to place ‘bed and bedstead’ cards (representing sleep), on any of the drawing(s), where and with whom, he would like to stay and have overnight contact; 7. Next, the assessor asked L if he wished to choose the days of week he would like to have contact (using the days of the week cards) [he did]; then the assessor asked L if he wished to place the cards on any of the drawing(s) of where and whom, he would like to have contact [he did]; 8. Lastly, the assessor asked L if he wished to have contact independently, or with staff support; L stated ‘with staff’. The assessor asked L if he wished to place the staff member cards on any of the drawings of where and whom, he would like to have contact [he did] (duplicate staff card made so as not to restrict choices).”
“During this process I endeavoured to enable and encourage L to participate in the assessment as fully as possible by paying regard to the SALT advice regarding tips to aid L’s communication and understanding: use of short simple sentences, ensuring to speak at a normal volume with slow speed and basic words, taking extra time to pause and check understanding, breaking down difficult information into smaller points, allowing L time to understand and consider each point before continuing, repeating information where appropriate and summarising to check shared understanding.”
“At interview L was very able to communicate with the assessor [namely, Ms. Whitaker]. His expressive speech was clear and understandable. His responses, actions to questions were coherent and the content was very consistent and congruent throughout.” 61. She noted at para.7.2.21 that L expressed additional reasoning with regard to his wishes and feelings concerning matters for the court. She set out that these included wanting to stop contact with K due to pressure. He stated: “K and D go on about different things. I do not know what to say and don’t know what they tell me next. Words in my head I tell staff.”
“To live in living accommodation as per that proposed by the London Borough of Waltham Forest [he drew a picture and supported that with the process that she undertook], that he does not wish to live with K[and again supported that with the process with the pictures she undertook]. He does not wish to live with M [and again supported it in the same way]. He does not wish to have contact with K with or without staff either at the flat or within the community. He expressed his wishes both verbally and pictorially, that he does wish to have contact with M either at the property or within the community but with staff support [and again expressed his wishes and feelings the same way].”
“States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.”