In Court of Protection (CoP) cases across the past few years there has been increasing reference and cautionary notes regarding professionals working in ‘silos’. This has been discussed by professionals such as Local Government Lawyer (2020) and Barrister, and honorary KC, Alex Keene (2021, 2024). This is a very interesting and thought-provoking topic, that we will try to explain to give readers some important context.
Mental Capacity in context
As with any issue relating to Mental Capacity, we should start by reminding ourselves of what decision-making means within the context of the Mental Capacity Act (2005).
According to the Act:
- A person’s capacity to make a decision is time and decision specific.
- We must apply the Five Principles of the Act at all times, supporting the individual in appropriate and proportionate ways to enable capacity.
- In the first instance, we should always presume someone has capacity to make a particular decision. If we are to suspend this presumption, we must have a ‘reasonable belief’ that there may be a lack of capacity for the specific decision.
- To test, or assess, capacity we apply the Two Stage Test, alongside any appropriate case law that is directly related to the decision identified.
The impact of professional silos
As the Mental Capacity Act reminds us, we are required to consider each case in terms of a specific decision at a particular time. We therefore cannot at any particular person state a person ‘lacks capacity’, as while they may lack capacity for one particular decision, this is not to say that they lack capacity for other decisions or at other times.
This can be a difficult line to navigate in practice, as to what degree should consider the specific nature of decisions? For example, do we formerly assess capacity for a care plan as a whole, each section of a care plan, each individual decision in action? For which we discuss this very question and application within our training provisions.
This also raises the question of how decisions are made in the first place. After all, how many decisions are ever made in complete isolation? If someone is making a decision about moving residences, is it not also important to know and be aware of what level of support and treatment will then be provided (or not) in the new context? Or when considering whether to sign a tenancy agreement, does a person not also need to have a knowledge of their personal finances or who would be the supporting them in meeting the financial aspect of the tenancy agreement (which may be an Appointee, LPA or deputy)?
This is where the concept of ‘silos’ comes in – as referred to by the Court of Protection. In these cases, CoP advises caution in finding a balance between the decision(s) being addressed, the salient information required for the decision(s), and taking great care not setting the threshold for capacity too high, applying the ‘balance of probabilities’. In these cases, it is likely necessary and beneficial to assess each relevant specific decision, ensuring effective documentation throughout prior to moving forward to Best Interest Decisions, if required.
Professionals are advised to check up to date case law prior to assessment and ensure cases are raised to the CoP in a timely manner if required. Any action taken should then be recorded appropriately in line with best practice guidelines.
Court of Protection cases
To explore this topic further, we have included a selection of relevant CoP cases that reflect the challenges of striking a balance between being decision-specific vs the risk of applying a siloed approach and not thinking about the bigger picture.
- London Borough of Tower Hamlets v A & KF [2020] EWCOP 21
- Liverpool City Council v CMW [2021] EWCOP 50
- A local Authority v ZZ (2024) EWCOP 21
- A Local Authority v ZX [2024] EWCOP 30
For further information and support with Mental Capacity training and assessments, please contact us.