Name of person assessed: AK. Date of birth: Address: 31 Arthur Road, Arthurs Town, Arthurville

Transcription

1 Name of person assessed: AK Date of birth: Address: 31 Arthur Road, Arthurs Town, Arthurville Decision being assessed: Capacity to Litigate Date of Assessment: Instructing solicitor: A Solicitor, A Law firm Instructing party: TSF Consultants 7 Nelson Street, Stroud GL5 3TA Report prepared by: Tim Farmer, Specialist Mental Capacity Assessor Date of report: TSF Consultants Capacity assessment on AK Page 1 of 7

2 Introduction 1. This report is addressed to the Court of Protection and is furnished on the instructions of A law firm acting on behalf of their client, AK. 2. A.K. has a diagnosis of Cerebral Palsy which was caused by a lack of oxygen at birth. 3. I have been asked to address the question of whether AK has the capacity to litigate. 4. In order to assess this I used the criteria for capacity to litigate as set out in Dunhill v Burgin (2014). I also used some very simple memory and reasoning tests. Summary of opinion 5. On the basis of the available information at the time of preparing this report in my opinion AK lacks capacity to litigate. Information sources 6. For the purposes of this report I assessed the Claimant at his home address of on 27th July There was no-one else present during the assessment. 7. I have also had sight of the TSF Consultants referral form. 8. I also spoke in private with AK s father. Interview 9. I asked AK if he was aware of the reason for the assessment and he informed me it was To assess my mental capabilities; to do with money and compensation. TSF Consultants Capacity assessment on AK Page 2 of 7

3 10. I confirmed the reason for my visit and explained that I would be assessing his mental capacity to litigate using the criteria as laid out in the Dunhill v Burgin ruling. I also explained what these criteria were. 11. Memory - I asked AK how his Cerebral Palsy affected his day to day functioning and he informed me that he struggles with his memory recall stating I really struggle most of the time. My short term memory is shot to pieces. 12. I asked AK to remember 3 items for me with a view to recalling them immediately and then also after a short period of time. The three items were Apple, table and Window. 13. AK was able to immediately recall all 3 items. 14. After approximately 5 minutes I asked AK to repeat back to the 3 items I had asked him to remember but he was only able to recall table. 15. I informed AK the other two items were Apple and Window but whilst AK was aware he had been told to remember 3 items he informed me that Apple and Window did not sound familiar. 16. I asked AK what factors impacted upon his ability to recall information and he identified tiredness and stress. However, he reported that it is not just confined to these but that he had been unable to identify and consistent factors. 17. AK informed me that in a 3 days time he would be able to recall meeting me but not the detail of the conversation or what I looked like. 18. I asked him if he could remember my name and he informed me that he couldn t, although he did attempt to guess, albeit incorrectly. 19. I asked how he attempts to manage his memory deficit and he informed me that he used to use post it notes but would often lose these. He now relies heavily on the TSF Consultants Capacity assessment on AK Page 3 of 7

4 schedule that appears on his phone to help him organise his time and remember important dates however he regularly forgets to check this. 20. I enquired about other coping strategies in relation to his memory but he was unable to identify any. 21. We discussed his occupation and he informed me that he currently plays saxophone in a band. AK informed me that due to his memory deficit he often struggles to remember what he is supposed to play and the structural make up of songs. 22. AK informed me that if he is due to attend a rehearsal, he will need to practice at home just prior to the rehearsal so that he can remember what he needs to play. 23. I asked AK what his understanding was of any proposed litigation and he informed that he did not know. He believed he had been told at some point but could not identify when or by whom. 24. Anxiety - I had been informed by AK s father that he often becomes anxious and I asked him about this. AK informed me that When under pressure. I get nervy and get sick. 25. I asked AK if he was ever physically sick when he got anxious and he informed me that he was. 26. I asked AK how anxiety affected his memory and he informed me that it made it more difficult to remember information. 27. We discussed how he attempts to manage his anxiety and he informed me that he tries to relax and control his breathing but when he does this he has to zone out and stops following conversation and taking on board new information. 28. Decision making - We discussed AK decision making abilities and he informed me that he is unable to make an independent decision. Instead he relies heavily on TSF Consultants Capacity assessment on AK Page 4 of 7

5 advice and support from others. This corroborated information given to me by his father. 29. Reasoning and learning - I informed AK that I was going to ask him to explain some proverbs to check his reasoning and he explained at length that he thought he was quite a reasonable person and didn t like arguments. 30. He was unable to explain either A bird in the hand is worth two in a bush or A stitch in time saves nine. 31. AK explained that he struggles to manage his finances on a daily basis and attributed this to not being able to learn the various processes required to conduct the necessary tasks. This information corroborated that which I had been given by his father. 32. AK informed me that to learn and retain new information he needs it repeating to him over and over again over an extended period of time. Mental State 33. Presentation AK presented as casually dressed and sat in a wheelchair. He was appeared fully engaged for the duration of the assessment. 34. Mood AK rated his mood as 9/10 (0 being the lowest). He denied currently being on any medication. He presented as euthymic. 35. Psychosis AK denied any psychosis, delusions or paranoia and there was no evidence to the contrary. 36. Thought disorder - He denied any formal thought disorder and there was no evidence to the contrary. TSF Consultants Capacity assessment on AK Page 5 of 7

6 37. Sleep AK struggled to identify what his sleeping pattern was and became bogged down in the minutia of daily patterns and schedules and how these affected his daily routine. He was unable to identify a general sleep pattern. 38. Speech Appeared normal in rate, tone and volume. No evidence of dysphasia or dyspraxia. Mental Capacity 39. In considering the issue of mental capacity for clients resident in England I am aware of the requirements of the Mental Capacity Act (2005) according to which an individual must be presumed to retain capacity unless it can be demonstrated that they lack capacity, and that capacity is decision-specific and depends on the ability to register, retain, rationalise and respond to information relevant to the decision in question. 40. I am also aware of the Dunhill - Burgin court ruling (2014) which held that capacity must be assessed in the context of the claim which the claimant actually has, and not by reference to the claimant's capacity to conduct the claim as formulated by his or her lawyers. 41. Reasoning AK demonstrates a certain amount of literal (concrete) thinking as evidenced by his inability to explain simple proverbs and his inability to formulate a general assessment of his sleep pattern. This suggests that he lacks inferential logic (ie the ability to extrapolate or infer potential outcomes arising from different variables). 42. This lack of inferential logic will make it very difficult for him to weigh or rationalise information relevant to his litigation (which is typically a highly complex process even for those with no intellectual impairment) TSF Consultants Capacity assessment on AK Page 6 of 7

7 43. Memory AK clearly has deficits in his ability to retain information and as yet he appears to have been unable to develop effective coping strategies to help manage this 44. It is my professional opinion that even if relevant information were presented and repeated to him adequately, he would probably be unable to remember key information relevant to his legal case. 45. Decision making AK appears to require significant support and validation from others before he is feels able to make a decision. As such I do not believe he would be able to independently formulate a decision relating to key elements of his case should this be required at any time. Summary of opinion 46. On the basis of the available information at the time of preparing this report in my opinion AK lacks capacity to litigate. Statement of truth 47. I understand my duty to the court and have complied with that duty and I am aware of the requirements of Part 35 of the Civil Procedure Rules, this practice direction and the protocol for the instruction of experts to give evidence in civil claims. 48. I confirm I have made clear which facts and matters referred to in this report are within my knowledge and which are not. Those that are within my knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer. Tim Farmer (BA, RMN, DipHE Mental Health, BIA) Specialist mental capacity assessor TSF Consultants Capacity assessment on AK Page 7 of 7