Deafness and Mental Capacity

Last month, the Court of Protection published a ruling about a profoundly Deaf young man who had previously been declared to lack capacity in most areas of his daily life following almost two years of investigation.
Evidence was presented to the Court which found that his original capacity assessors could not communicate with him in British Sign Language and had little to no understanding of deafness or language deprivation. An ‘interpreter’ was used who possessed Level 1 training in BSL, meaning their signing was limited to very brief everyday conversations about things like home life, pets, and food and drink. In the Court Report, it was concluded that the initial assessors “did not consider there could be reliance upon ‘surface level’ interpretations of the individual’s responses”.1 This was clearly inappropriate to anyone who has even a basic knowledge of sign language and resulted in the individual being labelled with a learning disability and features of autism, rather than as someone who had been deprived of language and communication access.
When a Deaf aware assessor with an appropriate level of BSL was used, the young man was found to have capacity in a number of areas including his residence, his care and support, and contact with his family. Undertaken by Dr O’Rourke, the second assessment went as far as to state that the individual in question was “very far from the diagnosis of a learning disability” and had been subjected to a form of assessment “not valid for deaf people”.2
While this is obviously a victory for the young man, it raises serious questions as to how anyone believed the original assessment was carried out to a reasonable standard. Mental Capacity Assessments are meant to establish if a person is able to make their own decisions about things but to understand their capacity, you have to understand the person.
Severe language deprivation is not a recognised disorder in itself, yet it is common feature of many Deaf peoples’ lives and creates additional barriers to access in their everyday lives. By failing to identify that the individual lacked language skills and instead labelling him as lacking capacity, the assessor belittled his autonomy. His language deprivation was labelled as being born out of “prolonged deprivation of communication, education, social learning and life experience, in combination with institutionalism” by Ms Gallop KC in 2023.3 With this in mind, someone who did not have experience in working with the Deaf community could not even begin to understand the complexities and nuances of communication and expression used by its’ members.
When authorities encounter a profoundly Deaf individual, they have a duty of care to ensure that communication preferences are met, yet this blatant oversight reflects the shocking reality of institutional blindness towards Deafness and the experiences of BSL-users. How many other Deaf people have lost control of major decisions in their lives due to similar situations?
The first key principle of Mental Capacity Act 2005 set out in the Code of Practice states that “a person must be assumed to have capacity unless it is established that he/she lacks capacity, while the Code also states that the person’s capacity “must not be judged simply on the basis of their age, appearance, condition or an aspect of their behaviour”.4 It is therefore difficult to see how the original assessors could have been confident in presenting their report in the knowledge that they were unable to effectively communicate with the individual being assessed. Mental Capacity Assessments are not one size fits all, and assessors are encouraged to adapt their assessments to meet the needs of the individual. Sourcing a qualified interpreter is easy to do and many health and social care organisations keep interpreting agencies on their books should they require one. By relying on the convenience of someone they had to hand, rather than booking an interpreter, the original assessors were setting the individual up to fail by not bothering to take appropriate action to ensure the assessment was fair.
Capacity assessments can be seen as a tick-box exercise for many of the staff involved in producing and reviewing them. However, it is easy to forget the impact that these assessments have on peoples’ lives. By taking away autonomy over decision-making when someone is perfectly capable of making that choice, you are depriving them of their human rights.
More needs to be done to understand the Deaf community and their unique communication preferences and challenges. We cannot have another case where an individual has been deprived in this way because an assessor did not bother to book an interpreter.
If you are working with a Deaf client, the ADN can help you with sourcing qualified, experienced interpreters across the U.K., ensuring full understanding for both you and your client. Get in touch today and we will be happy to help.
The full Court of Protection ruling can be accessed here: Oldham Metropolitan Borough Council v KZ & Ors (Rev1) [2024] EWCOP 72 (T3) (04 December 2024)
About the ADN: The Advisors for Deaf Network (ADN) is a not-for-profit initiative which exists to increase accessibility for d/Deaf clients accessing Legal and Financial Services. The ADN blog serves as a resource for increasing awareness of the barriers faced by the d/Deaf community in accessing services and for promoting best practice in accessibility.
1 Mrs Justice Theis DBE, Case no. COP13843260, 4 December 2024, p. 7
2 Ibid.
3 Ibid p. 8
4 Care Quality Commission, ‘Mental Capacity Act 2005 – Guidance for Providers’ (2011) p. 3