Court of Protection judge hands down ruling

 Simon Garlick specialist Court of Protection barrister was instructed by the Official Solicitor on behalf of TW, ‘P’ in the case of TW v Middlesbrough Council [2023] EWCOP 30, a case decided by Deputy High Court Judge Gollop, sitting as a Tier 3 judge in the Court of Protection.  The case centred on whether the agreed inability of TW, a profoundly deaf adult, to make decisions about his residence, care and access to the internet arose from any ‘impairment’ of the mind or brain, as required by the Mental Capacity Act 2005 for the purposes of establishing the court’s jurisdiction to make decisions on TW’s behalf and in his best interests.  TW had previously been assessed as having a Learning Disability, which was a necessary pre-requisite for his present and a proposed future placement, but the court heard independent expert evidence from a psychologist specialising in the cognitive assessment of individuals who are deaf whose assessment was that TW’s IQ was well above the threshold for Learning Disability, but who found him to be unable (for the purposes of s3 MCA) to make the decisions in question as a result of prolonged deprivation of communication, education and life experiences, including (in part because of his co-morbidity of Cerebral Palsy) in being placed in children’s homes which were not tailored to the support of deaf children.  Ultimately the court was satisfied that whilst TW did not meet the intellectual requirement of having an IQ of below 70, and so does not have a Learning Disability, he has a ‘functional learning disability’ , amounting to a s2 MCA impairment,  as a result of the effects upon him of that deprivation of experience.  The local authority was able to accept that the court’s finding was sufficient for TW to continue to be supported within its Learning Disability Services.  The case if of wider interest  – particularly in the context of the many brief assessments within the Deprivation of Liberty Safeguards process –  for its analysis of how ‘Learning Disability’ should be assessed in compliance with British Psychological Society guidance, to include separate assessment of IQ, and adaptive functioning.’

If you wish to instruct Simon Garlick please contact his clerk Sarah Gibson.

Media coverage can be found here