CAPACITY ASSESSMENTS/BEST INTEREST ASSESSORS

Ash Villa is a shambles and LCC and LPFT are struggling not very effectively to hide that.  The treatment of Elizabeth is incompetent and the over zealous use of PRN and seclusion a human rights violation.  That is what they want whacking with.

Robbing Elizabethof capacity is robbing her of he most fundamental rights as person and in effect turns her into a ‘thing’ rather than a person.

How true “I am not a person” “I wish I was never born” – This describes my daughter’s feelings and her treatment under the appalling NHS care – doesn’t matter where you live it is the same everywhere under mental health as we have unfortunately discovered yet hoped for something better. 

She has capacity to decide what is in ‘her best interests’ and that is categorically clear. 

Any patient presenting with inflammatory conditions needs close monitoring to avoid ADR’s and dose modification is almost certainly necessary.  It should be noted that inflammatory conditions are commonly seen in patient with endocrine disorders.  

There have been around 20 cases where patients were prescribed clozapine and had concomitant inflammatory disorders including those caused by pathogen infections and autoimmune conditions.  The inflammation increased the serum dose ratio and in 11 of the cases it was recommend to half the dose, in 5 others to reduce it by a third. Serum concentration is the major issue with this drug rather than dose and a high serum concentration can occur with a moderate dose.

It is this ratio that creates the problems with ADR’s and metabolism failure due to cytochrome P450 down regulation.   

The maximum dose in all cases had been 350mg and nowhere near maximum but still the serum dose ratio was adversely affected by the inflammatory disorder the patient had.  

s.117(6) Mental Health Act 1983 as amended by s.75 Care Act 2014.

Accommodation can only be provided where it meets a need related to the person’s mental ill health, and reduces the risk of the person’s condition deteriorating. At Ash Villa there are frequent bouts of inconsolable behaviour leading to seclusion and her being left to scream for hours on end. At home there has only been 1 incident and we are asking for adaptions to be made to the annex which we as a family have provided.

The person has the right to express a preference for particular accommodation. Social services must meet this preference provided it is: Elizabeth wants to come home and we as a family WANT HER HOME IN ACCORDANCE WITH HER WISHES.

·       of the same type that social services has decided to arrange – CARE IS ONLY ON ONE SIDE OF LINCS.

·       suitable for the adult’s needs THERE IS A VERY GOOD CHARITABLE SECTOR HERE WITH SO MUCH GOING ON THAT ELIZABETH WOULD BE INTERESTED IN.

·       available

·       affordable, using a ‘top-up’ if necessary

Applicable Principles and Requirements

The recent capacity assessments all been seriously flawed in terms of the requirements and principles of the Mental Capacity Act 2005, the Code of Practice, and indeed in the very philosophy underpinning the legislation.

The concept of best interests is founded on the most fundamental principles of human rights. Those principles are centred entirely around the welfare of the patient and never in the interests or expediency of ward management or those carrying out assessments.

The Mental Capacity Act 2005 at Section 4 requires that the patient is to be regarded as having capacity until evidence is ascertained as to how that capacity is impaired.  

No Proper Capacity Evidence

No proper, full, objective and admissible evaluation of capacity has ever been made at Ash Villa; and/or

• there has been bias in  assessment so materially affecting validity that none of the evidence on capacity is admissible.  

Elizabeth’s Responses

What is startling is that no account is taken of Elizabeth’s reaction to being, as she sees it, in an oppressive institutionalised situation in which she has virtually no right to privacy, family life or psychological and spiritual enrichment.  

It is hardly surprising that any person so deprived of the most fundamental of human aspirations is not so much lacking capacity but is self evidently being deprived of it.   

All of this is in breach of the letter and spirit of section 4, MCA 2005.  

The Prohibited Step

It is never allowed that the decision maker on best interest draws conclusions on capacity from a patient’s age or appearance on a condition of his/hers or an aspect of his behaviour which might lead others to make unjustified assumptions about what might be in his/her best interests by section 4(1)(a) & (b).  This is known generically as The Prohibited Step.     

Failures: Identification of Issues

Section 4(2) MCA 2005 requires that the decision maker should try to identify all the issues that would be most relevant to the individual who is asserted to lack capacity relating to the particular decision (para 3, Main Code of Practice)

Failures: Framing of questions/suggestions

The framing of questions/suggestions in closed form gave Elizabeth no opportunity to explain or include detail in her answers.  

It is a disturbing oversight on the part of those carrying out those interviews that the nature and framing of questions and suggestions, and their leading nature, made it impossible for her to express herself.  

Failures: Elizabeth’s Clear Responses

There is no evidence from the interviews that there was any attempt to determine the actual meaning of Elizabeth’s clear responses to questions/suggestions made by the interviewer.  

Failures to comply with Requirements

The capacity assessments were not conducted as required by section 1 of the Mental Capacity Act 2005.  

It is submitted that the capacity evidence is inadmissible as evidence of lack of capacity not only

because of logical and factual inaccuracies in the statements, but also for failure to apply the meaning of the statute, and the failures to follow the required steps:

Submissions on the Required s.4 Steps

The required steps, in summary, in s.4 of the Mental Capacity Act 2005, and appropriate related submissions, are:

To consider the likelihood of the person gaining capacity. There is no evidence that this was even considered by either first or 2nd opionion assessor or in the ‘off record’ intervention by KS, and thus never taken into account at all.

To promote and encourage the participation of the patient so far as possible.  There is no evidence that Elizabeth’s participation via appropriate dialogue was encouraged or ever taken into account at all. Indeed the first and second assessor treated her as someone with a severe learning disability rather than an educated woman with a chronic mental health condition.  They make reference to talking to her in “little chunks of three sentences”.  Nothing in Elizabeth’s diagnosis suggests that she is mentally retarded or incompetent and this approach is in clear violation of  The ‘Prohibited Step’ described in section 4(1) of the Act. 

To consider the persons wishes, beliefs and other factors the person would be likely to consider were they able to do so.  Once again this is not taken into account at all by either of the first and second opinion assessors.  None of Elizabeth’s wishes were considered in those interviews or were simply disregarded with scant attention.  No attempt was made to understand why she may have taken those positions, including of course that the oppressive nature of the interview with no independent observer present may have seriously deprived of any ability to explain in detail.  All contrary to section 4(2) and the main Code.

To take account of the views of named others.  This is perhaps the most obvious complete failing of all the assessment interviews and is a cause for serious concern.  The views of neither Susan Bevis, Elizabeth’s mother, or CB, her sister, or her father were taken into consideration or even sought.  

Conclusion:

The individual and accumulative effects of all of these failings make the statements by the assessors incapable of being relied upon at all.  

Comments on the Section D Assessments of the 1st assessor and second opinion assessor in red. 

Question 1. UNDERSTANDING: Does the person understand the information relevant to the decision?

Elizabeth frowned and stared at me. I added that according to her records, her mum does not believe that she suffers from the diagnoses listed. I explained that she believed that she had ‘autism’. She asked me what was going to happen about that diagnosis and I explained that she has been (or is going to be soon as we have agreed in last ward round) to be referred for a diagnostic interview but unfortunately, there was a long waiting time and when her turn comes up she would be assessed for it. 

‘as if’ is entirely speculative and inconclusive of Elizabeth’s lack of capacity.  It is also contradicted by Elizabeth’s response to the suggestion ************“Elizabeth frowned and stared at me”.  Such a response is self-evidently disapproval and indicates the capacity to make decision on this.  If indeed Elizabeth was expressing a refusal to discuss the matter further that cannot be ‘reasonably’ regarded as a lack of understanding of the issues and would just as likely show an objection to the suggestion ***********  Elizabeth’s mother’s beliefs are not evidence of Elizabeth’s capacity or lack of it.  

This is a logical fallacy. It is effectively asking Elizabeth to acknowledge her lack of capacity.  Logic clearly dictates that if she does not understand the information ‘given in little chunks’ she is not going to be able to determine her own lack of capacity. 

Question 2. RETENTION: Can the person retain the relevant information long enough for the decision to be made?

Answer: No

I asked her if she had any questions to ask and she said “no questions”. It is my reasonable belief that Elizabeth was not able to recall the salient points given to her to enable her to make a decision ******************t. It seems like she was able to retain the information for some time but she was not able to relay it back to me as if she did not want to discuss this issue anymore.

“I asked her if she had any questions to ask and she said “no questions”.”

“she was not able to relay it back to me as if she did not want to discuss this issue anymore”.

It is not a reasonable basis of belief that this indicates a lack of capacity and could just as easily represent defiance or resistance to a suggestion that Elizabeth found threatening or disagreeable.   It is also logically inconsistent.  If Elizabeth says “no questions” there is no reason at all why she would wish to relay back the discussion.   

2^nd Opinion Comments

1. UNDERSTANDING: Does the person understand the information relevant to the decision?

Answer: No

Elizabeth stated that she could not be involved in …………..because “my back is broken and I have got autism”. I did challenge Elizabeth on this stating that just because a person has autism (noting this is not a formal diagnosis for Elizabeth) – (no because it has been consistently deprived to her!) does not mean that they do not have opinions or views about what they want to happen, Elizabeth was still adamant that she could not be involved. I have checked with the care team and have been informed that although there is a likelihood that Elizabeth has injured her back when in periods of high distress and volatility, this has not been to a significant degree beyond strain or sprain and she is not known to have ever broken her back or sustained a similar level of injury. Elizabeth has frequent bouts of throwing herself off the bed onto the hard hospital floor in distress. Then we saw this on one occasion at home. All leave had been going OK up until then. That one occasion was on a new bed now broken but not a strong stable bed and all that is needed is a strong bed provided and nothing has been done about this since 5 March 2023.

On the balance of probabilities, I consider that Elizabeth does not understand all the salient information needed to be able to make such decision. When I tried to explain to Elizabeth that she could instruct a solicitor or tell the ******* what she wants, she was fixed in her view that she could not do this because of having autism. This evidences that Elizabeth does not understand all the options available to allow her to participate ***************** No this evidences that you the Dr do not understand!

Elizabeth stated that she could not be involved in court proceedings because “my back is broken and I have got autism”.

That is not conclusive or even persuasive evidence of a lack of capacity.  Elizabeth’s erroneous belief in her condition is not indicative of an inability to choose ******** or a failure to understand the questions put to her.  As for the injury to her back, she has been subjected to numerous physical restraints including pinning her face down on the floor according to witnesses .  It is entirely understandable that she may use hyperbole to describe her pain from injuries sustained by this restraint. That is not evidence of a lack of capacity.

2. RETENTION: Can the person retain the relevant information

long enough for the decision to be made?

Answer: No

Elizabeth has demonstrated that she does retain some information relating to ***********

I can see there have been occasions when she has been emotionally distressed that she has expressed anger about **************without prompting and has stated that LFPT does not have a right to stop her mother ************ She was also able to recall today that her mother is her **********

Although there is clearly a level of retention regarding this decision, I do not consider that Elizabeth is able to retain all the pertinent information required to be able to *********

After I finished my discussion with Elizabeth, deputy ward manager KS went to speak to her

independently in her bedspace to see if she was willing to discuss this decision in more detail without me being present. Elizabeth asked KS if I was going to be going to ******* Elizabeth had asked me the same question approx. 10 mins earlier when I was talking to her and I explained to her that I was not a solicitor and was not going to be in the ******* but that I would be writing about our discussion today and the *********. As Elizabeth had asked KS the same question 10 minutes after I had given her this information, this evidences difficulties with retaining all relevant information relating to ************ I see there have been occasions when she has been emotionally distressed that she has expressed anger about the *********************** without prompting and has stated that LFPT does not have a right to stop her mother being her ************** She was also able to recall today that her mother is her ********

All of that is indicative of a functioning capacity to understand the issues, not only at that point but on reflection of earlier events.  This is fully supportive of her ability not only to recall but to maintain a position on the ********* In the light of this is cannot be stated that “on the balance of probabilities” Elizabeth lacks capacity.  The MCA 2005 principles found at are at section 1  quite explicit that the capacity assessor should work on the basis that a patient has capacity ‘on the balance of probabilities”  Those principles are as follows:

• Principle 1: A presumption of capacity. … 
• Principle 2: Individuals being supported to make their own decisions. … 
• Principle 3: Unwise decisions. … 
• Principle 4: Best interests. … 
• Principle 5: Less restrictive option.

Violations of principle 1:El;izabeth is presumed in the negative contrary to the principle of presumed capacity.  Clear evidence in Elizabeth’s answers and  attitude to the capacity assessment indicates a presumption of capacity and not the contrary.

Violation of Principle 2:Elizabeth has received no support to make her own decisions and was not supported at this capacity interview by an independent advocate.  The clinical staff are seen by Elizabeth as intimidatory.  Her responses to these capacity interviews show clear evidence of resistance to the questions and objections to the purposes of it.

Violations of Principle 3:  Section 1 of the MCA 2005 and the Code of Practice are quite explicit that unwise decisions cannot be used as evidence of lack of capacity.  Emphasis is placed in the interviews on irrelevant interpretations of Elizabeth’s mistaken beliefs in her diagnosis.  It is very often that case, probably more often than not that a psychiatric patient will deny their illness.  This is not evidence in itself of either delusion or lack of capacity.  Elizabeth’s complaints about the back injury are quite explainable since she has been subjected to maximum physical restraint on several occasions.  The use of restraint has been described as a method of dealing with “distressed” patients at Ash Villa and that is quite disturbing.

Violation of Principle 4:  It was in Elizabeth’s best interest that this interview was conducted in the presence of an independent advocate or her *******  Neither was present and Elizabeth had no support.  Elizabeth is used to being physically restrained and in the light of that far better safeguarding of her best interest should have been applied at these interviews.    

Violation of Principle 5. Elizabeth is currently being held under a regime of restraint and it is difficult to see how she could be subjected to a more restrictive option.  The two on one surveillance that has been employed at Ash Villa and the intrusive surveillance of family visits is more severe than many s.37/41 patients would encounter.  There is every reason to believe that should Elizabeth be given a less institutionalised and restraint based treatment regime that she would display a much better degree of capacity than the current regime allows.   

“I do not consider that Elizabeth is able to retain all the pertinent information required to be able to******* in these ********

Elizabeth is not required to ********* these proceedings she is represented by a ************* and has a right to a *********

“As Elizabeth had asked KS the same question 10 minutes after I had given her this information, this evidences difficulties with retaining all relevant information relating to the ***************”.

That presumption is fallacious.  Elizabeth could just as likely have been seeking verification from someone she was more familiar with and it does not necessarily indicate she did not understand or retain the information.  It is also indicative of a lack of trust, especially in the light of the stated reason for KS wanting to speak to Elizabeth independently.    The suggestion that the capacity assessor was being mistaken for a solicitor is not made out.  Elizabeth’s question regarding whether the capacity assessor was going to be ********* is perfectly sensible since this person was discussing the ********** with her.  

“Elizabeth demonstrates an ability to communicate her views to the extent that she chooses and is able to do so. She did offer a view regarding her involvement in the current **************”I don’t want any part in it”. Further to this, she has at times of distress spontaneously expressed her unhappiness that LPFT have instigated these *************** Additionally, when deputy ward manager KS went to speak to Elizabeth alone 10 minutes after my assessment with her, she was able to express to KS that she did not want me (meaning KF) to have anything to do with the **********”.

Although Elizabeth is guarded and refused to discuss her capacity to ******** in any great detail with me, I do not consider that a refusal to communicate a decision equates to an inability to do so and therefore on the balance of probabilities, I consider that KS does have the ability to communicate in relation to this aspect of the capacity assessment”.

This element of the statement is riddled with contradictions when considered against the principles defined in section 1 of the MCA 2005.  Elizabeth appears to have a full appreciation of the nature and purpose of the litigation and expresses strong and clear views on it and the *************process as currently conducted by LCC Adult Social Care.  As stated a refusal to communicate is hardly any evidence of an ability to do so and is in realty much more likely to indicate a good range of capacity.  Once again concluding otherwise falls foul of principle one of the Mental Capacity Act 2005.  The entire process seems faulty and as such should not be admissible as evidence in these **************

As for the capacity assessment the best interests assessor will undoubtedly insist on certain conditions in order to carry this out effectively.  I would consider it unlikely that they would think having nurses with Elizabeth while this happened was at all appropriate.  The assessment of course is entirely reliant on Elizabeth co-operating.  It can be done remotely but it would have to be by Zoom or Teams so Elizabeth and the assessor could see each other.   

It is of course very likely that the AMPHs will not approve of this and put pressure on Ash Villa to prevent it.  Complete failure by the so called professionals involved in my daughter’s case. Complete lack of understanding and complete ignorance towards autism. I am apalled so much by hearing some of the heart-breaking messages from my daughter. This needs exposing.

What is manifestly obvious it that neither the LPFT or LCC will countenance Elizabeth moving into the annex full time.  Everyone at the LCC from the unregulated Legal Services Dept through the two AMPHs are opposing this strongly but what they failed in most of all is to take away my daughter’s capacity even with the massive increase in medication for this purpose she still says “i want to come home”. So the question is how very often does Elizabeth have to go into seclusion and be injected? From other patients I gathered it happened more than once a week. No doubt LPFT would have records of this but the CQC accused me of inundating them with complaints when in fact the complaints came from other sources.  

Because of severe neglect and bullying under ENFIELD we moved to Lincolnshire and now have built a separate living accommodation namely the annex.

It is clear Elizabeth wants to come home and has even on her own accord posted a prayer on Lincoln Cathedral’s wall.

I am saddened by having to write this blog even as we wanted to start afresh and hoped so much that we would be treated fairly in another area but sadly this proves that NHS Trusts and Council’s working together can be dishonest and corrupt and severely neglect a vulnerable person and I see this as abuse that needs exposing in order that improvements can be made and lessons learnt by both.

“It is looking more and more likely that Elizabeth will be given trial leave to supported accommodation.  She is entitled to this under section 117 having been on section 3. I will fight any such decision in court! hopefully a transparent hearing.

The leave can be between 3 months and two years and is contingent on the patient residing at the determined placement. 

The recent changes allowing Elizabeth short periods of unsupervised visits and trips out of Ash Villa suggest this is what they are moving to and they may already have a placement in mind.  (two have turned her down thankfully) – we just need a few adaptions to the annex which has already been built.

The patient is not discharged or on a CTO but is on extended leave under s.17.  This is subject to controls imposed by the clinical treatment team and the AMPH. A CTO, a disgusting weapon of abuse whereby; so called professionals can make threats and bully to their hearts content and I have all the paperwork to prove this fact which I can feature in my next blog. “I do now strongly suspect they have this in mind.  It is the best of both worlds for them.  They allow Elizabeth to leave Ash Villa and retain control over medication and supervision.” of which certain so called professionals such as AMHPs know absolutely nothing about.  

MotiVilla – multiply abused – all possessions of value missing.  14 year old drug dealer on site.Supposed to offer 24 hr care.

Phoenix House Northampton no food at the weekend yet rated good by CQC

Premier Inn Enfield Island Village –  moved from room to room – had to keep paying and then had to visit your department  to get the money back

Mays Cottage – Priory Craegmoor group –  broken lock to door of room- told to sleep on settee all night.  Resident drug dealer, resident bringing prostitutes in.  No supervision or care overnight.  Faced eviction because of another resident staying over from a related scheme.

Reservoir House  –  total breach of H&S –  five fumigations failed to stop bed bug problem which spread to all other residents.  Had to sleep on floor with damp sheets because of constant washing of clothes to try to stop the problem which persisted.

Solway Road–  temporary scheme without even a proper kitchen or lounge or garden to sit out in

Purcell House – the very best accommodation.   Independent Council Flat but no care act assessment or any S117 aftercare provided.

“The signal lack of interest in pathological causes for psychological dysfunction is a blight on psychiatry and every reason why all psychiatric patients should have regular endocrine function tests and neurological scans for dysfunctions in the amygdala hippocampus and pre-frontal cortex.  It is a blindingly obvious (except to many psychiatrists) precaution that pathological disorders should be screened for.” Yes how very true and this is what I have been trying to get in place for many years.

However, that legally invalid capacity report is in part good evidence
in your favour: it quotes Elizabethas saying that when she leaves the
hospital she “will go home to her mum”.

Presumably it is to do with the control of the aftercare.  They want to either discharge Elizabeth to sheltered accommodation or send her there on extended s.17 leave.

The failure to carry out a proper capacity assessment and the refusal to properly investigate potential medical conditions interfering with the treatment is staggeringly unprofessional.  If Elizabeth has an endocrine disorder and she almost certainly does. (as proven)  If she had inflammatory disorders they would interfere with the drug metabolism.  We already know she is a poor metaboliser but they continued nonetheless to treat her with medication that almost certainly would not work.  This should be thoroughly investigated and I suspect they do not want any **that might insist on it.  Like me!

The bottom line on the capacity issue is that while they maintain Elizabeth lacks capacity they will be able to perpetuate the myth that she cannot consent to here case being publicised. I am reading all my blogs to Elizabeth for her approval as I want her to know that she has my backing 100% and I feel that certain staff members are provoking her on the ward.

If Elizabeth does not want the ****** publicised she has that right.  It is the LCC and LPFT that actually want to hide things and they  are using Elizabeth’s erroneous lack of capacity to protect themselves.  That looks like an egregious abuse of process to me. And me too and I have written to those at the top of Trust and Council in this connection.

Clibbery is the authority   

Even where a case is heard in private, documents can be released to non-parties? Clibbery v Allan [2002] EWCA Civ 45, [2002] All ER (D) 281 (Jan) (a case cited extensively by Mostyn J in Appleton) concerned family proceedings heard in private. 

A circuit judge had refused to make an occupation order injunction (under Family Law Act 1996, Pt 4) on Ms Clibbery’s application. 

After the hearing she passed documents in the case to The Daily Mail. Mr Allan sought an injunction to prevent publication. 

How very interesting and notable. I’m all in favour of honesty and transparency especially if taxpayer’s money is involved.